Carter v. Davey, et al.

Filing 16

SCREENING ORDER: Order Dismissing First Amended Complaint for Failure to State a Claim, With Leave to Amend; ORDER Denying Motion for Appointment of Counsel, Without Prejudice; ORDER for Clerk to Send Plaintiff a Civil Complaint Form, signed by Magistrate Judge Gary S. Austin on 8/26/17. Thirty-Day Deadline for Plaintiff to File Second Amended Complaint. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS CARTER, Plaintiff, 12 v. 13 14 1:16-cv-00365-GSA-PC SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 14.) DAVEY, et al., Defendants. 15 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE (ECF No. 15.) 16 17 THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE SECOND AMENDED COMPLAINT 18 19 ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM 20 21 22 23 I. BACKGROUND 24 Marcus Carter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 25 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 26 commencing this action on March 8, 2016, at the U.S. District Court for the Eastern District of 27 California, Sacramento Division. (ECF No. 1.) On March 16, 2016, the case was transferred to 28 the Fresno Division. (ECF No. 4.) 1 1 On March 21, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action 2 pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 7.) 3 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 4 California, the undersigned shall conduct any and all proceedings in the case until such time as 5 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 6 On June 8, 2016, the court screened the Complaint and issued an order requiring 7 Plaintiff to either file an amended complaint or notify the court of his willingness to proceed 8 only on the claims found cognizable by the court. (ECF No. 9.) On September 9, 2016, 9 Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF 10 No. 14.) 11 II. SCREENING REQUIREMENT 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 14 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 15 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 16 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 17 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 18 paid, the court shall dismiss the case at any time if the court determines that the action or 19 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 25 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 26 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 27 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 28 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 2 1 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 2 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 3 this plausibility standard. Id. 4 III. SUMMARY OF FIRST AMENDED COMPLAINT 5 Plaintiff is presently a state inmate in the custody of the California Department of 6 Corrections and Rehabilitation, incarcerated at Mule Creek State Prison in Ione, California. 7 The events at issue in the First Amended Complaint allegedly occurred at Corcoran State 8 Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff names 9 one defendant, Correctional Officer (C/O) Bochop (“Defendant”). 10 Plaintiff’s allegations follow. In December 2014, Plaintiff was in the prison dayroom 11 along with other inmates. When walking by the control tower, Plaintiff heard a noise which 12 sounded like a weapon being cocked. 13 Bochop’s assault rifle pointed directly at him. Bochop said, “I’ll fucking kill you.” (ECF No. 14 14 at 6 ¶4.) Plaintiff was scared, not knowing what to do or say. Prior to this incident, Plaintiff 15 filed an administrative grievance against C/O Bochop for harassment. Plaintiff looked up and saw Correctional Officer 16 About a week later, in an unstable rant, C/O Bochop expunged the clip from the same 17 mini-14 assault rifle and pointed it at C/O Vela and a different inmate. Since then, Plaintiff has 18 suffered from nightmares, flashbacks, insomnia, anxiety, distrust of C/Os, and fear of filing 19 appeals against them. 20 Plaintiff filed an inmate appeal in December 2014. On December 12, 2014, plaintiff 21 was notified that the appeal had been sent to the Associate Warden, with a due date of January 22 28, 2015. A few weeks later, after receiving no response, Plaintiff contacted the office of the 23 ombudsman who informed Plaintiff on March 3, 2015 that the appeal, Log# CSP-C-4-14- 24 07843, was pending investigation and that Plaintiff would be notified of the outcome. 25 than fifteen months passed, yet Plaintiff received no notification of the outcome. 26 Plaintiff requests monetary damages. 27 /// 28 /// 3 More 1 IV. PLAINTIFF’S CLAIMS 2 The Civil Rights Act under which this action was filed provides: 3 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 4 5 6 7 42 U.S.C. § 1983. 8 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 9 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 10 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 11 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 12 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 13 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 14 a state law amounts to the deprivation of a state-created interest that reaches beyond that 15 guaranteed by the federal Constitution, Section 1983 offers no redress.” Sweaney v. Ada 16 County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). 17 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 18 color of state law and (2) the defendant deprived him of rights secured by the Constitution or 19 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 20 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 21 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 22 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an 23 act which he is legally required to do that causes the deprivation of which complaint is made.’” 24 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 26 established when an official sets in motion a ‘series of acts by others which the actor knows or 27 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 28 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely 4 1 resembles the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. 2 Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 3 F.3d 1010, 1026 (9th Cir. 2008). 4 A. 5 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 6 petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 7 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 8 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 9 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 10 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 11 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 12 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 13 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); 14 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). Retaliation 15 An allegation of retaliation against a prisoner’s First Amendment right to file a prison 16 grievance is sufficient to support a claim under § 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 17 (9th Cir. 2003). The court must “‘afford appropriate deference and flexibility’ to prison 18 officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be 19 retaliatory.” Pratt, 65 F.3d at 807 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 20 (1995)). The burden is on Plaintiff to demonstrate “that there were no legitimate correctional 21 purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808. 22 Plaintiff claims that in December 2014, defendant C/O Bochop pointed a gun at 23 Plaintiff and threatened to kill Plaintiff in retaliation for Plaintiff filing a prison appeal against 24 C/O Bochop for harassment. 25 Plaintiff has satisfied the first element of a retaliation claim, because threatening to kill 26 someone while pointing a gun at him is unquestionably an adverse action. Plaintiff has also 27 satisfied the third element by alleging that prior to the incident, he exercised his First 28 Amendment right to file a prison appeal against C/O Bochop. 5 In addition, Plaintiff satisfies 1 the fourth element with his allegation that the incident caused him to be fearful of filing prison 2 appeals against correctional officers. 3 However, Plaintiff fails to satisfy the second and fifth elements of a retaliation claim. 4 The second element requires Plaintiff to allege facts showing a connection between C/O 5 Bochop’s adverse action and Plaintiff’s filing of the prison appeal against Bochop. Although 6 Plaintiff alleges that he filed a prison appeal against C/O Bochop prior to the incident at issue, 7 Plaintiff has not shown that C/O Bochop acted because of Plaintiff’s appeal against him. In 8 Watison, the court held: 9 [T]he plaintiff must allege a causal connection between the adverse action and the protected conduct. Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal. See Pratt, 65 F.3d at 808 (“timing can properly be considered as circumstantial evidence of retaliatory intent”); Murphy v. Lane, 833 F.2d 106, 108–09 (7th Cir. 1987). 10 11 12 13 Watison, 668 F.3d at 114-15. Here, Plaintiff has not indicated in the Complaint when he filed 14 the prison appeal against C/O Bochop, which could show a timing connection, or alleged any 15 other facts indicating that C/O Bochop acted because of the prison appeal. Therefore, Plaintiff 16 fails to satisfy the second element. 17 To satisfy the fifth element, Watison held: 18 21 Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution....” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A plaintiff successfully pleads this element by alleging, in addition to a retaliatory motive, that the defendant’s actions were arbitrary and capricious, id., or that they were “unnecessary to the maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).” 22 Id. As discussed above, the burden is on Plaintiff to demonstrate “that there were no legitimate 23 correctional purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808. Here, 24 Plaintiff fails to allege that C/O Bochop’s action “did not advance legitimate goals” of the 25 prison, or that Bochop’s actions “were arbitrary and capricious” or “unnecessary to the 26 maintenance of order in the institution.” Id. Therefore, Plaintiff fails to satisfy the fifth 27 element of a retaliation claim. 28 /// 19 20 6 1 Accordingly, Plaintiff fails to state a claim for retaliation against defendant C/O 2 Bochop. 3 deficiencies discussed by the court. Plaintiff shall be granted leave to file an amended complaint addressing the Damages for Emotional Distress – Physical Injury Requirement 4 B. 5 Plaintiff alleges that Defendant’s conduct caused him to suffer mental and emotional 6 distress. The Prison Litigation Reform Act provides that “[n]o Federal civil action may be 7 brought by a prisoner confined in jail, prison, or other correctional facility, for mental and 8 emotional injury suffered while in custody without a prior showing of physical injury.” 42 9 U.S.C. § 1997e(e). The physical injury “need not be significant but must be more than de 10 minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ) (back and leg pain and canker 11 sore de minimis); see also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) 12 (bladder infections and bed sores, which pose significant pain and health risks to paraplegics 13 such as the plaintiff, were not de minimis). The physical injury requirement applies only to 14 claims for mental or emotional injuries and does not bar claims for compensatory, nominal, or 15 punitive damages. Id. at 630. Therefore, Plaintiff is not entitled to monetary damages in this 16 case for emotional distress unless he also shows a physical injury. 17 C. 18 Plaintiff requests appointment of counsel. Plaintiff does not have a constitutional right 19 to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and 20 the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 21 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 22 (1989). However, in certain exceptional circumstances the court may request the voluntary 23 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Motion for Appointment of Counsel 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 7 1 In the present case, the court does not find the required exceptional circumstances. At 2 this early stage in the proceeding, the court cannot make a determination that Plaintiff is likely 3 to succeed on the merits. By this order, Plaintiff=s First Amended Complaint shall be dismissed 4 for failure to state a claim, with leave to amend. At this juncture it seems that the Plaintiff can 5 adequately articulate his claims and respond to the court’s orders. Plaintiff is advised however, 6 that he is not precluded from renewing the motion for appointment of counsel at a later stage of 7 the proceedings. Therefore, Plaintiff’s motion for the appointment of counsel shall be 8 DENIED, without prejudice. 9 V. 10 CONCLUSION AND ORDER The court finds that Plaintiff=s First Amended Complaint fails to state a claim upon 11 which relief may be granted under § 1983. 12 Complaint for failure to state a claim and grant Plaintiff leave to file a Second Amended 13 Complaint addressing the issues described above. The court will dismiss the First Amended 14 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 15 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 16 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 17 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the Second 18 Amended Complaint within thirty days. 19 The Second Amended Complaint must allege facts showing what each named defendant 20 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 21 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 22 demonstrate that each defendant personally participated in the deprivation of his rights by their 23 actions. Id. at 676-77 (emphasis added). Plaintiff must 24 Plaintiff should note that although he has been given the opportunity to amend, it is not 25 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 26 507 F.3d 605, 607 (no “buckshot” complaints). Plaintiff is not granted leave to add allegations 27 of events occurring after the date he initiated this action, March 8, 2016. 28 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 8 1 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 2 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 3 amended complaint, as in an original complaint, each claim and the involvement of each 4 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 5 titled “Second Amended Complaint,” refer to the appropriate case number, and be an original 6 signed under penalty of perjury. 7 Based on the foregoing, it is HEREBY ORDERED that: 8 1. 9 Plaintiff’s First Amended Complaint is DISMISSED for failure to state a claim, with leave to amend; 10 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 11 3. Plaintiff is granted leave to file a Second Amended Complaint curing the 12 deficiencies identified by the court in this order, within thirty (30) days from 13 the date of service of this order; 14 4. Complaint” and refer to the case number 1:16-cv-00635-GSA-PC; 15 16 5. 17 18 Plaintiff shall caption the Second Amended Complaint “Second Amended Plaintiff’s motion for appointment of counsel is DENIED, without prejudice; and 6 19 If Plaintiff fails to file a Second Amended Complaint within thirty days, this case shall be dismissed for failure to state a claim. 20 21 22 23 IT IS SO ORDERED. Dated: August 26, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 9

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