Keenan v. Lopez

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 5/16/2015. Amended Complaint due by 6/22/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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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-01852 GSA PC

KEENAN SIGUR,

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

vs.
J. LOPEZ,

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Defendant.

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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 22, 2014 (ECF No 6).
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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).

28 U.S.C. §

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkewicz 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.

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

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plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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However, “the liberal pleading standard . . . . applies only to a plaintiff’s factual allegations.”

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Nietze v. Williams, 490 U.S. 319, 330 n. 9 (1989). “[A] liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled.” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)(quoting Ivey v.Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982)).

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II.

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Plaintiff’s Claims
This action proceeds on the December 22, 2014, first amended complaint. Plaintiff, an

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inmate in the custody of the California Department of Corrections and Rehabilitation at Folsom

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State Prison, brings this civil rights action against defendant J. Lopez, a correctional officer

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employed by the CDCR at Kern Valley State Prison, where the event at issue occurred.

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Plaintiff claims that he was subjected to cruel and unusual punishment in violation of the

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Eighth Amendment.

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Plaintiff alleges that on July 23, 2014, there was “an on-going incident regarding Latino

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and Black inmates.” Two days prior, Plaintiff had been moved to Facility C1B from C East

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“for reasons that another correctional officer clearly had no regulated right.” Defendant

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ordered several Latino inmates to get on to their bunks. Defendant Lopez then went into an

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office. The Latino inmates began fighting as Defendant Lopez re-emerged from the office.
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Plaintiff moved towards Defendant “in fear for my life.” Defendant ran towards the exit gate

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and instructed Plaintiff to move away. Upon exiting the unit, Defendant “dropped his baton or

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flashlight” which was used by a Latino inmate to strike Plaintiff several times on his arms and

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back. Plaintiff seeks compensatory damages

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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

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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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Here, Plaintiff fails to allege facts from which an inference could be drawn that

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Defendant knew of a specific harm to Plaintiff and disregarded that harm. The facts alleged

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indicate that Defendant Lopez, in response to a disturbance involving multiple inmates,

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directed Plaintiff to move away from him, and retreated for his own safety. There are no facts

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alleged indicating that Defendant knew that the disturbance was about to occur, or that

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Defendant deliberately left a weapon for another inmate to use to harm Plaintiff. That

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Defendant Lopez reacted for his own safety and to summon help does not subject him to

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liability because Plaintiff was injured. Plaintiff must allege some facts indicating that Lopez

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acted with the intent to harm Plaintiff. An allegation that Lopez dropped his baton or flashlight

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while retreating does not indicate deliberate indifference. The first amended complaint should

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therefore be dismissed. Plaintiff will, however, be 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 Defendant Lopez liable, Plaintiff must explain how Lopez knew of and disregarded a

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danger to Plaintiff. Plaintiff must describe what Defendant 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 first amended complaint and finds that it does not

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state any claims upon which relief may be granted under section 1983. The Court will provide

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Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by

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the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is

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

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amended 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).

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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to state a claim;

Plaintiff’s first amended complaint is dismissed, with leave to amend, for failure

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

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

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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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