Verduzco v. Marin et al
Filing
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SCREENING ORDER DISMISSING COMPLAINT and GRANTING LEAVE TO AMEND 1 , signed by Magistrate Judge Barbara A. McAuliffe on 2/11/15: Thirty-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SALVADOR GONZALEZ VERDUZCO,
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Plaintiff,
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MARIN, et al.,
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Defendants.
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Case No.: 1:14-cv-01387-BAM (PC)
SCREENING ORDER DISMISSING COMPLAINT
AND GRANTING LEAVE TO AMEND
(ECF No. 1)
THIRTY-DAY DEADLINE
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I.
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Plaintiff Salvador Gonzalez Verduzco (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was transferred to
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this Court on September 5, 2014. Plaintiff’s complaint, filed on April 30, 2014, is currently before the
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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 relief
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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §
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1915(e)(2)(B)(ii).
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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, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s
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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.
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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
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omitted).
To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient
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factual detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.
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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant
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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the
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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572
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F.3d at 969.
Plaintiff’s Allegations
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II.
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Plaintiff is currently housed at Salinas Valley State Prison. The events in the complaint are
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alleged to have occurred at Corcoran State Prison. Plaintiff names Correctional Officers Marin and
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Rios as defendants.
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Plaintiff alleges as follows:
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I went to the clinic, Salcedo and Portillo took me out of my cell with hand cuff’s and with
chains on my legs – than Marin and Rios took me back from the clinic or mini hospital at
Corcoran than Marin started pushing me and than I dessapier when I wake up I was in
fresno Hospital. With very – sirious injury, in my left side of my head. I want a
Compensation of money plus free Canteen every month, plus extra trays and peanut
butter lunch everyday. this was on 09/20/2008.
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(ECF No. 1, p. 3) (unedited text).
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III.
Discussion
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to state a
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cognizable claim. Plaintiff will be given leave to cure the deficiencies in his complaint. To assist
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Plaintiff, the Court provides the relevant pleading and legal standards.
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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 plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a ). Detailed
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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–
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557; Moss, 572 F.3d at 969.
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Although Plaintiff’s complaint is short, it does not include a plain statement of his claim.
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Rather, Plaintiff’s complaint fails to include sufficient factual allegations to clearly state what
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happened. If Plaintiff elects to amend his complaint, he must include facts alleging what each
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defendant did or did not do that resulted in a violation of his constitutional rights.
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B. Excessive Force
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, 452
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U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The inquiry as to whether a prison
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official’s use of force constitutes cruel and unusual punishment is “whether force was applied in a
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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
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Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992); Whitley v.
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Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1085(312), 89 L.Ed.2d 251.
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“The objective component of an Eighth Amendment claim is ... contextual and responsive to
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contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S.Ct. at 1000 (internal quotation
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marks and citations omitted). A prison official’s use of force to maliciously and sadistically cause
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harm violates the contemporary standards of decency. Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct.
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1175, 1178, 175 L.Ed.2d 995 (2010). However, “[n]ot ‘every malevolent touch by a prison guard
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gives rise to a federal cause of action.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9, 112
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S.Ct. at 1000). Factors that can be considered are “the need for the application of force, the
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relationship between the need and the amount of force that was used, [and] the extent of injury
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inflicted.” Whitley, 475 U.S. at 321, 106 S.Ct. at 1085; Marquez v. Gutierrez, 322 F.3d 689, 692 (9th
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Cir.2003). Although the extent of the injury is relevant, the inmate does not need to sustain serious
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injury. Wilkins, 130 S.Ct. at 1178–79; Hudson, 503 U.S. at 7, 112 S.Ct. at 999.
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Here, Plaintiff alleges that Defendant Marin started pushing Plaintiff and Plaintiff then
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disappeared and woke up in the hospital with a serious head injury. Although Plaintiff’s complaint
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refers to being sent “to the Comma,” it is not clear if he means he was comatose from an alleged
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injury. The Court cannot infer from the facts as stated that Defendant Marin’s action in pushing
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Plaintiff resulted in any corresponding injury. Plaintiff does not allege whether he fell, tripped, was
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pushed onto the ground or into an object or how obtained the alleged head injury. Plaintiff will be
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given leave to cure this deficiency.
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IV.
Conclusion and Order
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8, and he fails to
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state a cognizable claim. The Court will grant Plaintiff an opportunity to cure the identified
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deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at
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678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555
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(citations omitted).
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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims
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in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
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complaints).
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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
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Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended
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complaint must be “complete in itself without reference to the prior or superseded pleading.” Local
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Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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The Clerk’s Office shall send Plaintiff a complaint form;
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Plaintiff’s complaint is dismissed with leave to amend;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file a first
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amended complaint; and
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If Plaintiff fails to file a first amended complaint in compliance with this order, this
action will be dismissed for failure to obey a court order and failure to state a claim.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
February 11, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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