Moreno v. Castel

Filing 5

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 12/03/2014. Amended Complaint due by 1/5/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FERNANDO MORENO,

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Plaintiff,

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v.

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CASTEL,

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Defendant.

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Case No.: 1:14-cv-01356-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A COGNIZABLE CLAIM FOR
RELIEF
[ECF No. 1]

Plaintiff Fernando Moreno is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983, filed August 29, 2014.

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I.

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SCREENING REQUIREMENT

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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). The

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

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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On June 1, 2014, Plaintiff was seriously injured due to the gross negligence of Sergeant Castel.

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Sergeant Castel failed to follow standard procedure when he escorted Plaintiff, while handcuffed

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(behind his back) down the stairway. Sergeant Castel failed to use the guardrail to properly secure the

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safety of Plaintiff and himself. Sergeant Castel recklesslessly took two steps, at one time, down the

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stairway and did not use the guardrail causing Plaintiff to fall injuring his shoulder and back.

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Plaintiff requests $295,000.54, along with written apology.

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III.

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DISCUSSION

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A.

Failure to Protect/Negligence

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To state a claim for failure to protect, Plaintiff must allege facts sufficient to show that

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Defendants were “deliberately indifferent,” that they were aware of, but nevertheless consciously

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disregarded an excessive risk to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). If

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the official is not alleged to have actual knowledge of a serious risk of harm, but is alleged to be aware
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of facts from which the inference could be drawn that a substantial risk of serious harm exists, the

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plaintiff must further allege that the official “also dr[ew] the inference. Id. at 837; Wilson v. Setter,

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501 U.S. 294, 303 (1991). Negligence and/or gross negligence are insufficient to establish deliberate

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indifference. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). The Constitution does

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not guarantee due care on the part of state officials; liability for negligently inflicted harm is

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categorically beneath the threshold of constitutional due process. See County of Sacramento v. Lewis,

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523 U.S. 833, 849 (1998).

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To the extent Plaintiff contends that Defendant Castel failed to protect him from harm when he

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fell down stairs while being escorted while handcuffed, Plaintiff’s constitutional claim fails. Plaintiff

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alleges that Defendant Castel engaged “gross negligence” when he took two steps, at one time, down

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the stairway. Plaintiff’s allegations fall short of finding allegations to show that Defendant could have

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drawn the inference that there was a substantial risk of serious harm to Plaintiff. See Iqbal, 556 U.S.

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at 678. Accordingly, as currently pled, Plaintiff has failed to demonstrate that Defendant Castel acted

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with conscious disregard to a risk to his safety. See Farmer, 511 U.S. at 837; Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978) (to establish a deprivation of a constitutional right by any particular

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individual, the plaintiff must allege that the individual, in acting or failing to act, was the actual and

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proximate cause of his injury). Thus, Plaintiff’s constitutional claim based on “gross negligence” must

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be dismissed, with leave to amend, for failure to state a cognizable claim. The Court will grant

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Plaintiff the opportunity to amend the complaint, if he can do so.

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted the opportunity to file a first amended complaint within thirty (30) days.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.
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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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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 an amended civil rights complaint form;

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2.

Plaintiff’s complaint, filed August 29, 2014, is dismissed for failure to state a claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will 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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December 3, 2014
UNITED STATES MAGISTRATE JUDGE

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