Puckett v. Young et al

Filing 8

SCREENING ORDER REQUIRING Plaintiff to File Amended Complaint or NOTIFY Court of Willingness to Proceed only on Cognizable Claims; Thirty Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 6/4/2014. (Attachments: # 1 Amended Complaint)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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D. PUCKETT,

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Plaintiff,
v.
R. YOUNG, et al.,

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Defendants.

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1:13-cv-00840-BAM (PC)
SCREENING ORDER REQUIRING
PLAINTIFF TO FILE AMENDED
COMPLAINT OR NOTIFY COURT OF
WILLINGNESS TO PROCEED ONLY ON
COGNIZABLE CLAIMS
(ECF No. 1)
THIRTY-DAY DEADLINE

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I.

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Plaintiff Durrell Puckett (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on

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June 3, 2013, is currently before the Court for screening.

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Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff’s current address is the Department of State Hospitals in Vacaville, California.

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The events alleged in the complaint occurred while Plaintiff was housed at the California

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Correctional Institute.

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Excessive Force

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On June 12, 2009, Defendant P. Grant, along with Defendant J. Meyers, aggressively

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slammed Plaintiff into the wall. Defendant R. Young then violently struck Plaintiff repeatedly in

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the face while he was being taken down by Defendants D. Jobb, J. Meyers and P. Grant.

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Defendants J. Meyers and P. Grant struck Plaintiff with their hands, boots and baton. Defendant

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G. Rodriguez then hit Plaintiff’s elbow multiple time with his baton. Defendant Young kicked

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Plaintiff in the face numerous times while Plaintiff was in cuffs. While this was occurring,

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Defendant D. Jobb was holding Plaintiff down to prevent his escape.

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About ten to fifteen minutes later, Defendant Sergeant M. Slankard and Defendant

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Sergeant C. Martinez pulled Plaintiff out of his holding cell and slammed him into the cell door.
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Plaintiff flew off his feet and smashed head first. While cuffed, Plaintiff crumbled to the floor

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and Defendants Slankard and Martinez starting hitting him. Defendant Jobb held Plaintiff down

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and covered Plaintiff’s mouth as he screamed for help.

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Retaliation

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On the same date, Defendant T. Peterson falsified a write-up, stating that Plaintiff tried to

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spit on her because she insinuated/ordered the assault by Defendants Martinez and Slankard.

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Defendant T. Peterson also knew that Plaintiff wanted a camera interview. Defendant Peterson,

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along with Defendant Grant, denied Plaintiff legal copies needed for his lawsuit against CDCR.

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Defendants Grant, Slankard and Martinez were mad because Plaintiff wanted to speak to

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Lt. E. Noyce regarding their threats and violations. Defendants Grant and R. Williams continued

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to threaten Plaintiff as he went to his unit. They got the assistance of others and initiated the

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attack on Plaintiff.

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Defendants Jobb, Meyers, Grant, Williams, Munoz, Rodriguez, Young, Slankard and

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Martinez falsified his CDC 115 and attempted to cover-up the prison brutality. They attempted

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to manipulate the matter by saying only Defendant Young used force because he had flashbacks

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started by Plaintiff kicking him. About 7-12 inmates started yelling, stating “Help Captain their

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[sic] stomping out a cuffed inmate” and other words to that effect. (ECF No. 1, p. 5.)

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Defendant Steers checked outside and then gave Defendant Martinez a thumbs-up.
Defendant Martinez then started his attack.

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Discrimination

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Plaintiff contends that Defendant Young called him a “nigger” as he hit and kicked

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Plaintiff in the head. As Plaintiff screamed, an officer said “not in the face stupid what are you

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doing.” (ECF No. 1, p. 5.) Defendant Young stated, “Fuck Niggers that’s what I’m doing.”

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(Id.)

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Failure to Protect/Intervene

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Defendant Williams, Steers, Munoz, Peterson, Grant and others told Slankard and

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Martinez to continue the attack. Defendants Williams and Munoz watched and condoned both

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attacks.

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Deliberate Indifference to Health and Safety

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Defendant Slankard ordered that Plaintiff be given nothing and Plaintiff was left on

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restrictions for over 10 days with no showers or clothing. Plaintiff’s food was deliberately

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thrown on the floor. Plaintiff told Defendant Slankard of back pains, but he did not let Plaintiff

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leave the empty cell until July 30, 2009.

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Plaintiff seeks both compensatory damages and cameras in places that inmates frequent.

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III.

Discussion

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A.

Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

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(citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also

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Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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Although Plaintiff provides a short statement, it is not plain and it does not set forth

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sufficient factual matter in connection with certain claims. For example, Plaintiff’s retaliation

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claim is disjointed, chronologically misplaced and confusing. As discussed below, certain of

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Plaintiff’s claims do not provide specific factual information to permit the Court to determine if

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Plaintiff has stated a plausible claim for relief against the individually named defendants. If

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Plaintiff elects to amend his complaint, he must set forth specific factual allegations against each

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defendant sufficient to state a claim that is plausible on its face.

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Eighth Amendment – Excessive Force

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B.

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“[W]henever prison officials stand accused of using excessive physical force in violation

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of the Cruel and Unusual Punishments Clause, the core judicial inquiry is ... whether force was

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

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cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). “In

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determining whether the use of force was wanton and unnecessary, it may also be proper to

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evaluate the need for application of force, the relationship between that need and the amount of

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force used, the threat reasonably perceived by the responsible officials, and any efforts made to

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temper the severity of a forceful response.” Id. at 7 (internal quotation marks and citations

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omitted).
At the pleading stage, Plaintiff has stated a cognizable excessive force claim against

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Defendants P. Grant, J. Meyers, R. Young, D. Jobb, G. Rodriguez, M. Slankard, and C.

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Martinez.

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C.

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Within the prison context, a viable claim of First Amendment retaliation consists of five

Retaliation

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elements: “(1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005); accord

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Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.2012); Brodheim v. Cry, 584 F.3d 1262, 1269

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(9th Cir.2009).

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A plaintiff suing for retaliation under section 1983 must allege that “he was retaliated

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against for exercising his constitutional rights and that the retaliatory action does not advance

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legitimate penological goals, such as preserving institutional order and discipline.” Barnett v.

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Centoni, 31 F.3d 813, 816 (9th Cir.1994). The plaintiff does not need to show actual inhibited or

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suppressed speech, but that there was a chilling effect upon his speech. Rhodes, 408 F.3d at 569.

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The burden is on the plaintiff to plead and prove the absence of any legitimate correctional goals

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for the alleged conduct. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.1995).
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Here, Plaintiff’s allegations of retaliation are disjointed and confusing and the sequence

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of events is unclear. As currently alleged, the Court cannot discern a cognizable retaliation

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claim. Plaintiff will be given leave to cure the deficiencies of this claim.

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D.

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Plaintiff alleges that Defendant Young used racial epithets as he hit and kicked Plaintiff

Discrimination

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in the head. The Equal Protection Clause requires that all persons who are similarly situated

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should be treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne

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v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To state

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an Equal Protection claim, Plaintiff must show that the defendants acted with an intent or

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purpose to discriminate against him based on membership in a protected class, Lee, 250 F.3d at

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686; Barren v. Harrington, 152 F.3d 1193, 1194 (1998), or that similarly situated individuals

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were intentionally treated differently without a rational relationship to a legitimate state purpose,

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Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech,

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528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

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Plaintiff does not allege that the use of excessive force by Defendants Young was the

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result of Plaintiff’s membership in a protected class. Rather, Plaintiff alleges that Defendant

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Young used racial epithets during an excessive force incident involving multiple officers,

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including Defendant Young. The Ninth Circuit generally holds that mere verbal harassment or

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abuse, including the use of racial epithets, does not violate the Constitution and, thus, does not

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give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136,

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139 (9th Cir. 1987); see Villegas v. Schulteis, 2009 WL 2246765, *7 (E.D. Cal. Jul. 28, 2009)

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(prisoner failed to state a cognizable Equal Protection claim based on allegations that racially-

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charged language was used during the use of excessive force incident).
Eighth Amendment – Failure to Intervene

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E.

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Prison officials are required “to take reasonable steps to protect inmates from physical

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abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir.1982) (abrogated on other grounds by

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Sandin v. O’Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). “[A] prison

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official can violate a prisoner’s Eight Amendment rights by failing to intervene.” Robins v.

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Meecham, 60 F.3d 1436, 1442 (9th Cir.1995).

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At the pleading stage, Plaintiff has stated a cognizable claim for failure to intervene in

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violation of the Eighth Amendment against Defendants Williams and Munoz. However,

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Plaintiff’s allegation that Defendants Steers, Peterson, and Grant told Defendants Slankard and

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Martinez to continue the attack does not state a claim for failure to protect. There is no factual

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allegation that Defendants Steers, Peterson and Grant failed to intervene or where present during

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any alleged attack by Defendants Slankard and Martinez.

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F.

Eighth Amendment – Deliberate Indifference

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Conditions of Confinement

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,

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452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). A prisoner’s claim does not rise to the

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level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner of

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the ‘minimal civilized measure of life’s necessities,’” “and (2) “the prison official ‘acted with

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deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.2004)

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(quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002) (citation omitted)). In order to find

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a prison official liable under the Eighth Amendment for denying humane conditions of

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confinement within a prison, the official must know “that inmates face a substantial risk of

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serious harm and disregard[ ] that risk by failing to take reasonable measures to abate it.” Farmer

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v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

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Here, Plaintiff has stated a cognizable claim against Defendant Slankard for inhumane

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conditions of confinement based on the lack of showers and clothing. However, there is no

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indication that Defendant Slankard was responsible for throwing food on the floor. Plaintiff will

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be given leave to cure this deficiency.

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Serious Medical Needs

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
inmate must show “deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d
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1091, 1096 (9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

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L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show

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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2)

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“the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096;

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1018 (9th Cir.

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2010). “Deliberate indifference is a high legal standard.” Simmons, 609 F.3d at 1019; Toguchi,

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391 F.3d at 1060. The prison official must be aware of facts from which he could make an

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inference that “a substantial risk of serious harm exists” and he must make the inference. Farmer,

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511 U.S. at 837.

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Plaintiff’s allegations that he told Defendant Slankard of back pains, but was not allowed

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to leave the empty cell until July 30, 2009, are not sufficient to state a cognizable claim for

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deliberate indifference to serious medical needs. Plaintiff has not demonstrated a serious

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medical need or a substantial risk of serious harm and he has not alleged sufficient facts to

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demonstrate that Defendant Slankard failed to adequately respond. Plaintiff will be given leave

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to cure these deficiencies.

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G.

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Plaintiff’s complaint states a cognizable excessive force claim against Defendants Grant,

Conclusion and Order

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Meyers, Young, Jobb, Rodriguez, Slankard, and Martinez, a cognizable claim for failure to

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intervene against Defendants Williams and Munoz, and a cognizable claim for deliberate

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indifference to Plaintiff’s conditions confinement against Defendant Slankard. Plaintiff fails to

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state any other cognizable claims for relief.

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The Court will grant Plaintiff an opportunity to cure the identified deficiencies which

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Plaintiff believes, in good faith, are curable. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000). If Plaintiff amends, he may not change the nature of this suit by adding new, unrelated

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claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and he is agreeable to proceeding

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only against Defendants Grant, Meyers, Young, Jobb, Rodriguez, Slankard, and Martinez for

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excessive force, against Defendants Williams and Munoz for failure to intervene, and against

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Defendant Slankard for deliberate indifference to his conditions of confinement, he may file a

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notice informing the Court that he does not intend to amend and he is willing to proceed only on

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his cognizable claims. The remaining defendants and claims will then be dismissed, and the

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Court will provide Plaintiff with the requisite forms to complete and return so that service of

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process may be initiated.
If Plaintiff chooses to file a first amended complaint, the amended complaint should be

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brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant did that led to the

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deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1948-49.

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Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

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above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:

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a.

File a first amended complaint curing the deficiencies identified by the

Court in this order, or
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Notify the Court in writing that he does not wish to file a first amended

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complaint and he is willing to proceed only against Defendants P. Grant, J. Meyers, R.

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Young, D. Jobb, G. Rodriguez, M. Slankard, and C. Martinez for excessive force, against

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Defendants Williams and Munoz for failure to intervene, and against Defendant Slankard

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for deliberate indifference to his conditions of confinement; and

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3.

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prejudice, for failure to obey a court order.

If Plaintiff fails to comply with this order, this action will be dismissed, without

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 4, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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