Hines v. Gipson et al

Filing 10

ORDER DISMISSING COMPLAINT And Granting Plaintiff LEAVE TO FILE AN AMENDED Complaint, Amended Complaint Due In Thirty Days, signed by Magistrate Judge Gary S. Austin on 1/13/2015. First Amended Complaint due by 2/17/2015. (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14 cv 00563 AWI GSA PC

CHRISTOPHER HINES,

ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

vs.

C. GIPSON, et al.,
Defendants

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule
302 pursuant to 28 U.S.C. § 636(b)(1).
The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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“Rule 8(a)‟s simplified pleading standard applies to all civil actions, with limited
exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.

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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff‟s

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claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the

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liberal pleading standard . . . applies only to a plaintiff‟s factual allegations.” Neitze v. Williams,

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490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not

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supply essential elements of the claim that were not initially pled.” Bruns v. Nat‟l Credit Union

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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268
(9th Cir. 1982)).
II.

Plaintiff’s Claims
On March 16, 2012, Plaintiff‟s cell was searched, based upon a statement by the control

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officer that he had observed Plaintiff placing something in his anal cavity. Plaintiff agreed to

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submit to an x-ray, which revealed “some type of contraband” in Plaintiff‟s anal cavity. Plaintiff

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was placed on a 72 hour contraband watch. Plaintiff alleges that over the 72 hour period, he had

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three bowel movements. Plaintiff alleges that Defendants violated prison regulations by keeping

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him on contraband watch for 108 hours. Plaintiff also alleges that he was subjected to cruel and

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unusual punishment because his hands were handcuffed to his waist, and he had no opportunity

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to wash them.

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A.

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“[A] prison official cannot be found liable under the Eighth Amendment for denying an

Conditions of Confinement

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inmate humane conditions of confinement unless the official knows of and disregards an

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excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A

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plaintiff who claims that the conditions of his confinement fall below the constitutional standard

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must make two showings. “First, the plaintiff must make an „objective‟ showing that the

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deprivation was „sufficiently serious‟ to form the basis for an Eighth Amendment violation.”

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Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)(citation omitted). “The Constitution . . .
„does not mandate comfortable prisons, and only those deprivations denying „the minimal

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civilized measure of life‟s necessities‟ are sufficiently grave to form the basis of an Eighth

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Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991)(citations omitted). Second,

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the prisoner must make a “subjective” showing that prison officials “acted with the requisite

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culpable intent such that the infliction of pain is „unnecessary and wanton.‟ In prison condition

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cases, prison officials act with the requisite culpable intent when they act with deliberate
indifference to the inmate‟s suffering.” Anderson v. County of Kern, 45 F.3d 1310, 1312 (9th Cir.
1995).
To make the required objective showing that the conditions of contraband watch were

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“sufficiently serious” to support an Eighth Amendment claim, Plaintiff needs to present evidence

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of an “excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The risk must be

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shown in a specific deprivation of a basic human necessity. “Nothing so amorphous as „overall

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conditions‟ can rise to the level of cruel and unusual punishment when no specific deprivation of

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a single human need exists.” Wilson v. Seiter, 294, 305 (19910. “To the extent that such

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conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay

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for their offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[E]xtreme

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deprivations are required to make out a conditions of confinement claim.” Hudson v. McMillian,

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503 U.S. 1, 9 (1992).

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The nature of the deprivation and the duration of Plaintiff‟s stay on contraband watch are

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also factors in the Court‟s analysis. “The more basic the need, the shorter the time it can be

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withheld.‟ . . . More modest deprivations can also form the objective basis of a violation, but

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only if such deprivations are lengthy or ongoing.” Johnson, 217 F.3d at 731-31 (citations

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omitted). “Prison officials must provide all prisoners with adequate food, clothing, shelter,

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sanitation, medical care, and personal safety . . . The longer the prisoner is without such benefits,

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the closer it comes to being an unwarranted infliction of pain.” Hoptowit v. Ray, 682 F.2d 1237,

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1285 (9th Cir. 1982).

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Here, the Court finds Plaintiff‟s allegations to be vague. Plaintiff alleges that he was on
contraband watch for 108 hours, 30 hours over the normal period. To state a claim under section
1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the
defendant deprived him of rights secured by the Constitution or federal law. Long v. County of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a

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constitutional right, where that person „does an affirmative act, participates in another‟s

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affirmative acts, or omits to perform an act which [that person] is legally required to do that

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causes the deprivation of which complaint is made.‟” Hydrick v. Hunter, 500 F.3d 978, 988 (9th

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Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he „requisite

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causal connection can be established not only by some kind of direct, personal participation in

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the deprivation, but also by setting in motion a series of acts by others which the actor knows or

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reasonably should know would cause others to inflict the constitutional injury.‟” Id. (quoting

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Johnson at 743-44). Plaintiff has not specifically charged each defendant with conduct

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indicating that they knew of and disregarded a serious risk to Plaintiff‟s health, resulting in injury

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to Plaintiff. Plaintiff may not hold defendants liable simply by alleging that he was subjected to

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an extended contraband watch. Plaintiff must allege some facts indicating that he was deprived

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of a basic human necessity. Plaintiff must allege facts indicating that each defendant was aware

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of a specific harm to Plaintiff, and acted with deliberate indifference to that harm. Plaintiff has

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failed to do so here. The complaint should therefore be dismissed. Plaintiff will, however, be

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granted leave to file an amended complaint.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to

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hold an individual defendant liable, Plaintiff must name the individual defendant, describe where

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that defendant is employed and in what capacity, and explain how that defendant acted under

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color of state law. Plaintiff should state clearly, in his or her own words, what happened.

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Plaintiff must describe what each defendant, by name, did to violate the particular right described
by Plaintiff. Plaintiff has failed to do so here.
III.

Conclusion and Order
The Court has screened Plaintiff‟s complaint and finds that it does not state any claims

upon which relief may be granted under section 1983. The Court will provide Plaintiff with the
opportunity to file an amended complaint curing the deficiencies identified by the Court in this
order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he
may not change the nature of this suit by adding new, unrelated claims in his amended
complaint. George, 507 F.3d at 607 (no “buckshot” complaints).
Plaintiff‟s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal

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rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d

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at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord

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Forsyth, 114 F.3d at 1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff‟s complaint is dismissed, with leave to amend, for failure to state a
claim;

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2.

The Clerk‟s Office shall send to Plaintiff a complaint form;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file

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an amended complaint;
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4.

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complaint and any attempt to do so will result in an order striking the amended

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Plaintiff may not add any new, unrelated claims to this action via his amended

complaint; and
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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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January 13, 2015