Muse v. USP Atwater, CA Staff Members

Filing 15

ORDER DISMISSING Plaintiff's 14 Third Amended Complaint For Failure to State a Cognizable Claim; Clerk Shall CLOSE the CASE signed by Magistrate Judge Michael J. Seng on 5/31/2013. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL MUSE,

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CASE NO.
Plaintiff,

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1:13-cv-00100-MJS (PC)

ORDER DISMISSING PLAINTIFF’S THIRD
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM

v.

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USP ATWATER STAFF, et al.,

(ECF No. 14)

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Defendants.

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CLERK SHALL CLOSE THE CASE
/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Earl Muse, a federal prisoner proceeding pro se and in forma pauperis, filed

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this civil action on December 17, 2012, pursuant to Bivens v. Six Unknown Named Agents

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of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the

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violation of civil rights by federal actors. (ECF No. 1.) Plaintiff has consented to Magistrate

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Judge jurisdiction. (ECF No. 6.)
Plaintiff’s Complaint (ECF No. 1), First Amended Complaint (ECF No. 10), and

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Second Amended Complaint (ECF No. 12) were screened and dismissed, with leave to

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amend, on February 28, 2013, March 29, 2013, and May 17, 2013, respectively, for failure

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to state cognizable claims. (ECF Nos. 9, 11, and 13.) Plaintiff’s Third Amended Complaint

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(ECF No. 14) is now before the Court for screening.
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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

SUMMARY OF THIRD AMENDED COMPLAINT

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The Third Amended Complaint names Lieutenant Morgan, Lieutenant Miller,

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Correctional Officer Cruz, and other unknown officers at the United States Penitentiary,

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Atwater (Atwater) as Defendants.

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Plaintiff alleges the following:

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Defendant Morgan ordered that Plaintiff be held be held from December 8, 2010 to

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December 11, 2010, while cuffed at the ankles and waist, wearing only boxer shorts and

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a t-shirt. Plaintiff was not provided any other clothing. During that time Defendant Cruz

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and other unknown officers mishandled Plaintiff by “slamming and stripping [Plaintiff] of

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[his] clothes.” (Compl. at 3, 4.)

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Plaintiff was confined a second time, from April 24, 2011 to April 27, 2011, on

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Defendant Morgan’s orders. Plaintiff was again cuffed at the waist and ankles and had on

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only a pair of boxer shorts. Defendant Miller and unknown officers mishandled Plaintiff

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during this second period of confinement. (Id. at 4.)

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Plaintiff was then held a third time, from April 27, 2011 to May 1, 2011. Plaintiff was

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cuffed to a wall while his feet were cuffed to a bed. The holding cell was cold and the

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mattress was dirty, no sheets were provided, and Plaintiff was only wearing boxer shorts.

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(Id. at 4.) Plaintiff was also deprived of a shower for eleven days as ordered by Defendant

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Miller. (Id.)

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IV.

ANALYSIS

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A.

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A complaint must contain “a short and plain statement of the claim showing that the

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Bivens Pleading Standard

pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the

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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum

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v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal

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officer in his or her individual capacity for damages for violating the plaintiff's constitutional

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rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right

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secured by the Constitution of the United States was violated, and (2) that the alleged

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violation was committed by a federal actor.

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B.

Eighth Amendment
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Conditions of Confinement

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners not only from inhumane methods of punishment but also from inhumane

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conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006)

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(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994) and Rhodes v. Chapman, 452 U.S.

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337, 347 (1981)). While conditions of confinement may be, and often are, restrictive and

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harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465

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F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions

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which are devoid of legitimate penological purpose or contrary to evolving standards of

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decency that mark the progress of a maturing society violate the Eighth Amendment.

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Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536

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U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346.

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Prison officials have a duty to ensure that prisoners are provided adequate shelter,

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food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d
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726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that
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a prisoner sustains while in prison represents a constitutional violation, Morgan, 465 F.3d

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at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner

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must show that prison officials were deliberately indifferent to a substantial risk of harm to

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his health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144,

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1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan,

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465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.

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1998).

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The allegations set forth in the Third Amended Complaint are substantively identical
to those offered in Plaintiff’s previous three pleadings. Plaintiff alleges that he was

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restrained continuously for four days on three separate occasions. Each time Plaintiff was

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confined in nothing but his underwear. Plaintiff was shackled to a bed during the final

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period of restraint.

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Extended time in restraints may, under certain circumstances, amount to a violation

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of the Eighth Amendment. See Hope, 536 U.S. at 738 (holding that cuffing an inmate to

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a hitching post for seven hours despite there being no emergency to necessitate it was a

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violation of the Eighth Amendment). However, as pled, the factual allegations are not
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sufficient to state a cognizable claim.

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Prison officials have a duty to provide “the minimal civilized measure of life's

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necessities, . . . .” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citing Rhodes, 452 U.S. at

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347). “[T]he circumstances, nature, and duration of a deprivation of these necessities must

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be considered in determining whether a constitutional violation has occurred.” Johnson,

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217 F.3d at 731. Plaintiff has repeatedly failed to provide sufficient factual detail for the
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Court to consider the circumstances surrounding his confinement.
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Restraint for the periods alleged is not per se cruel and unusual. The Court can

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envision circumstances in which it might be cruel and unusual, but also circumstances in

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which it might be justified. See, e.g., Schilling v. TransCor America, LLC, 2012 WL

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3257659, *8-9 (N.D. Cal. Aug. 8, 2012) (The use of restraints - leg shackles, handcuffs,

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belly chains, and black boxes to restrict wrist movement - for a period exceeding twenty-

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four hours, by itself and in the context of transportation, is not an unconstitutional

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deprivation under the Eighth Amendment.); Centeno v. Wilson, 2011 WL 836747, *3-4

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(E.D. Cal. Mar. 4, 2011) (inmate held in restraints for seven days while placed on

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contraband surveillance watch, causing him pain, sores, and permanent scarring to his

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wrists, did not state an Eighth Amendment claim because the restraints served a valid

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penological purpose). Without a description of the circumstances surrounding Plaintiff’s

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confinement, the Court can not determine the viability of Plaintiff’s claims. Plaintiff has

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been instructed repeatedly that his pleading must provide circumstantial detail. The

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Court’s previous screening order set out specific questions regarding the confinement that

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the amended complaint should have attempted to answer.

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Nevertheless, the Third Amended Complaint again fails to cure the pleading
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deficiencies. Plaintiff appears unwilling or unable to provide the necessary allegations;

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further leave to amend would be futile. Plaintiff’s Eighth Amendment conditions of

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confinement claims are dismissed with prejudice.

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2.

Excessive Force

The Cruel and Unusual Punishments Clause of the Eighth Amendment protects

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prisoners from the use of excessive physical force. Wilkins v. Gaddy, 559 U.S. 34, 130
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S.Ct. 1175, 1178 (2010) (per curiam); Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). What
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is necessary to show sufficient harm under the Eighth Amendment depends upon the claim

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at issue, with “the objective component being contextual and responsive to ‘contemporary

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standards of decency.’” Hudson, 503 U.S. at 8 (citing Estelle v. Gamble, 429 U.S. 97, 103

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(1976)). For excessive force claims, the core judicial inquiry is whether the force was

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applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically

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to cause harm. Wilkins, 559 U.S. at 34, 130 S.Ct. at 1178 (quoting Hudson, 503 U.S. at

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7) (quotation marks omitted).

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Not every malevolent touch by a prison guard gives rise to a federal cause of action.
Wilkins, 559 U.S. at 34, 130 S.Ct. at 1178 (quoting Hudson, 503 U.S. at 9) (quotation

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marks omitted). Necessarily excluded from constitutional recognition is the de minimis use

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of physical force, provided that the use of force is not of a sort repugnant to the conscience

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of mankind. Wilkins, 559 U.S. at 34, 130 S.Ct. at 1178 (quoting Hudson, 503 U.S. at 9-10)

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(quotations marks omitted). In determining whether the use of force was wanton and

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unnecessary, courts may evaluate the extent of the prisoner’s injury, the need for

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application of force, the relationship between that need and the amount of force used, the

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threat reasonably perceived by the responsible officials, and any efforts made to temper
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the severity of a forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations
omitted).

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While the absence of a serious injury is relevant to the Eighth Amendment inquiry,

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it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause

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harm always violates contemporary standards of decency. Wilkins, 559 U.S. at 34, 130

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S.Ct. at 1178 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Thus, it is the
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use of force rather than the resulting injury which ultimately counts. Id. at 1178.
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Plaintiff alleges that he was “slamm[ed]” by Defendant Cruz and “mishandle[d]” by

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Defendant Miller and unknown officers. As stated in the Court’s previous order, these

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terms and allegations are too vague to state a claim. The Court does not know what

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Plaintiff means by the terms. Plaintiff provides no context as to how or why the force was
applied.

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The Court provided Plaintiff with the applicable legal standard and an opportunity

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to amend. His failure to adequately plead his claim is evidence that he can not. Further

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leave to amend is unnecessary.

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V.

CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that Plaintiff’s Third Amended

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Complaint fails to state a claim upon which relief may be granted and that leave to amend

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would be futile. See Noll v. Carson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly,

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Plaintiff’s Third Amended Complaint is DISMISSED WITH PREJUDICE for failure to state

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a claim. The Clerk shall close the case.

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IT IS SO ORDERED.

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Dated:

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ci4d6

May 31, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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