Lawrence v. Lopez

Filing 11

ORDER DISMISSING Complaint and GRANTING Plaintiff Leave to File an Amended Complaint, signed by Magistrate Judge Gary S. Austin on 5/16/2015. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-01844 GSA PC

DONALD LEE LAWRENCE,

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

vs.
J. LOPEZ, et al.,

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Defendants.

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement

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

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c).1

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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).

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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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Plaintiff consented to proceed before a magistrate judge on December 17, 2014 (ECF No 4).
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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.”

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

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II.

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28 U.S.C. §

Plaintiff’s Claims
Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at Ironwood State Prison, brings this action against defendant

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correctional officials employed by the CDCR at Kern Valley State Prison, where the eventes at

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issue occurred. Plaintiff names as defendants Lieutenant Tange, Sergeant Vega and

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Correctional Officer (C/O) J. Lopez. Plaintiff claims that Defendants were deliberately

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indifferent to his safety, resulting in injury to Plaintiff.

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Plaintiff’s statement of claim, in its entirety, follows.

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Fail to secure check & lock up cleaning supply such as brooms,
mops etc. Ran out of dayroom while running, left behind his
steel flashlight. Negligence our safety was used as a weapon.
Directly after the riot they put us back into a hostile environment
with the same attacking latino inmates without my consent.
Which I was housed for 90+ days causing stress, and anxiety
levels to rise due to the fact that I am already under a lot of
personal pressure and stress.

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(Compl. ¶ IV).
Eighth Amendment

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The Eighth Amendment requires prison officials to take reasonable measures to
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guarantee the safety of inmates, which has been interpreted to include a duty to protect
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prisoners. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d
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1036, 1040 (9th Cir. 2005). A prisoner seeking relief for an Eighth Amendment violation must

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show that the officials acted with deliberate indifference to the threat of serious harm or injury
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to an inmate. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). “Deliberate
indifference” has both subjective and objective components. A prison official must “be aware

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of facts from which the inference could be drawn that a substantial risk of serious harm exists
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and . . . must also draw the inference.” Farmer, 511 U.S. at 837. Liability may follow only if a

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prison official “knows that inmates face a substantial risk of serious harm and disregards that

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risk by failing to take reasonable measures to abate it.” Id. at 847.

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Plaintiff has not alleged facts suggesting deliberate indifference. Plaintiff alleges that

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“they” subjected him to risk of harm, but fails to charge each individual defendant with

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particular conduct. Plaintiff must allege facts indicating that each defendant was aware of a

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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 must 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

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

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

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

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Plaintiff must describe what each defendant, by name, did to violate the particular right

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described by Plaintiff.

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III.

Conclusion

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

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upon which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he

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may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint.

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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

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federal rights, Hydrick, 500 F.3d at 987-88.

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allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Bell

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

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Although accepted as true, the “[f]actual

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

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

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F.2d 565, 567 (9th Cir. 1987), and must be “complete and in and of itself without reference to

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the prior or superseded pleading.” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of

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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

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(9th Cir. 1981)).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a

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2.

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

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3.

Within thirty days from the date of service of this order, Plaintiff shall file an

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claim;

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

complaint and any attempt to do so will result in an order striking the amended complaint; and
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If Plaintiff fails to file an amended complaint, the Court will dismiss this action,

with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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