Heredia v. CCI

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 9/22/16: 30-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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AARON AUGUSTINE HEREDIA,

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Plaintiff,

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Case No. 1:16-cv-00788-JLT (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

(Doc. 1)

CCI,

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Defendant.

30-DAY DEADLINE

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Plaintiff alleges he was attacked by another inmate while he was on the phone. Because
he fails to state a cognizable claim, the Complaint is DISMISSED with leave to amend.

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A.

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The Court is required to screen complaints brought by prisoners seeking relief against a

Screening Requirement

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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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief 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)(i)-(iii). If an action is dismissed on one of these three basis, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma
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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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B.

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Plaintiff complains of incidents that occurred at California Correctional Institute (“CCI”)

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in Tehachapi, California. CCI is the only defendant Plaintiff identified. Plaintiff alleges that, on

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January 21, 2015, he was using the phone at his assigned time when he was attacked by a “drunk

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level 4 inmate.” Plaintiff ended up being shot twice by the tower officer and sprayed with 3 cans

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of pepper-spray during the incident. Plaintiff alleges that the level 4 inmate is a trouble-maker

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and has been in two more fights since. Plaintiff is a level 2 inmate who complies with the

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requirements of his program, and has never had any write-ups during his entire term of

Summary of Plaintiff=s Complaint

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incarceration. Plaintiff seeks monetary damages and requests the “115 write up” and everything

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about this incident be removed from his C-File.

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Plaintiff has not stated any cognizable claims but may be able to correct the deficiencies in

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his pleading so as to state a cognizable claim. Thus, he is being given the pleading requirements,

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the legal standards for claims he may be attempting to state (though none are identified), and

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leave to file a first amended complaint.

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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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. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). 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. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual
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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as

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concise as possible and under twenty-five pages. He should merely state which of his

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constitutional rights he feels were violated by each Defendant and its factual basis.

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2.

Linkage Requirement

The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.

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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between

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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named

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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s

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federal rights.

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Plaintiff fails to link any individual persons to any of his allegations. Plaintiff must

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clearly state which individuals he feels are responsible for each violation of his constitutional

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rights and their factual basis as his complaint must put them on notice of Plaintiff=s claims against

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him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

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D.

Legal Standards
1.

Eighth Amendment -- Failure to Protect

"The treatment a prisoner receives in prison and the conditions under which he is confined

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are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832,

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114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). Prison officials

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have a duty "to take reasonable measures to guarantee the safety of inmates, which has been

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interpreted to include a duty to protect prisoners." Labatad v. Corrections Corp. of America, 714

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F.3d 1155, 1160 (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040

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(9th Cir. 2005)).

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To establish a violation of this duty, the prisoner must "show that the officials acted with

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deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing

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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective

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and subjective components.

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First, objectively, the alleged deprivation must be "sufficiently serious" and where a

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failure to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions

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posing a substantial risk of serious harm." Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337,

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349, 101 S.Ct. 2392 (1981). Second, subjectively, the prison official must "know of and

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disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern,

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45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must "be aware of facts from which the
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inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the

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inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Liability may follow only if a prison

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official "knows that inmates face a substantial risk of serious harm and disregards that risk by

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failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. 1970.

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2.

Supervisory Liability

Plaintiff is informed that supervisory personnel are generally not liable under section 1983

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for the actions of their employees under a theory of respondeat superior and, therefore, when a

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named defendant holds a supervisory position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th

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Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941

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(1979). To state a claim for relief under section 1983 based on a theory of supervisory liability,

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Plaintiff must allege some facts that would support a claim that supervisory defendants either:

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personally participated in the alleged deprivation of constitutional rights; knew of the violations

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and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the

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policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional

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violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may not be

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imposed on supervisory personnel for the actions of their employees under a theory of respondeat

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superior. Iqbal, 556 U.S. at 677. "In a § 1983 suit or a Bivens action - where masters do not

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answer for the torts of their servants - the term 'supervisory liability' is a misnomer." Id.

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Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability;

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each government official is only liable for his or her own misconduct. Id.

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A>[B]are assertions . . . amount[ing] to nothing more than a Aformulaic recitation of the

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elements@ of a constitutional discrimination claim,= for the purposes of ruling on a motion to

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dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.@ Moss,

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572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch

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allegations are not to be discounted because they are >unrealistic or nonsensical,= but rather

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because they do nothing more than state a legal conclusion B even if that conclusion is cast in the
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form of a factual allegation.@ Id. Thus, any allegations that supervisory personnel such as a

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Warden is somehow liable because of the acts of those under his or her supervision does not state

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a cognizable claim.

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3.

Eleventh Amendment Immunity

Plaintiff names CCI as the only defendant in this action. Plaintiff may not sustain an

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action against a state prison. The Eleventh Amendment prohibits federal courts from hearing

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suits brought against an un-consenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951

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F.2d 1050, 1053 (9th Cir. 1991); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122

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(1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993);

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Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars

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suits against state agencies as well as those where the state itself is named as a defendant. See

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Natural Resources Defense Council v. California Dep=t of Tranp., 96 F.3d 420, 421 (9th Cir.

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1996); Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a

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state agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community

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College Dist., 861 F.2d 198, 201 (9th Cir. 1989). AThough its language might suggest otherwise,

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the Eleventh Amendment has long been construed to extend to suits brought against a state by its

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own citizens, as well as by citizens of other states.@ Brooks, 951 F.2d at 1053 (citations omitted).

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AThe Eleventh Amendment=s jurisdictional bar covers suits naming state agencies and

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departments as defendants, and applies whether the relief is legal or equitable in nature.@ Id.

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(citation omitted). Because CCI is a part of the California Department of Corrections, which is a

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state agency, it is entitled to dismissal based on Eleventh Amendment.

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4.

Heck/Edwards Bar

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The United States Supreme Court has determined that an inmate may not bring an action

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under § 1983 if its success would release the claimant from confinement or shorten its duration,

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Preiser v, Ridrugyez, 411 U.S. 475, 500, 93 S.Ct. 1827 (1973), or would necessarily imply the

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invalidity of the conviction or sentence, Heck v. Humphrey, 512 U.S. 477, 487 (1994). Where the

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plaintiff’s success on a § 1983 action would necessarily imply the invalidity of his underlying
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conviction or sentence, he must first "prove that the conviction or sentence has been reversed on

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direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court's issuance of a writ of habeas

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corpus, 28 U.S.C. § 2254." Heck at 487-88. "A claim for damages bearing that relationship to a

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conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at

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488. This "favorable termination" requirement has been extended to actions under § 1983 that, if

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successful, would imply the invalidity of prison administrative decisions which result in a

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forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997).

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Thus, if removal of the “115 write-up” from Plaintiff’s file would result in resurrection of

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any good-time credits, Plaintiff must show that the guilty finding they were based on has been

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invalidated before he may pursue claims under § 1983. Plaintiff has not shown that any finding

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against him under the 115 has been favorably terminated and thus cannot pursue any claims under

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§ 1983 on the underlying events at this time.

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E.

CONCLUSION

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For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first

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amended complaint within thirty days. If Plaintiff needs an extension of time to comply with this

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order, Plaintiff shall file a motion seeking an extension of time no later than thirty days from the

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date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.
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Gibson, 355 U.S. 41, 47 (1957). 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. 127, 555

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(2007) (citations omitted).

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Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified
by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

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

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).

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Based on the foregoing, the Court ORDERS:

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1.

Plaintiff's Complaint is dismissed, with leave to amend;

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2.

The Clerk's Office shall send Plaintiff a civil rights complaint form;

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3.

Within 30 days from the date of service of this order, Plaintiff shall file a first

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amended complaint curing the deficiencies identified by the Court in this order, or

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a notice of voluntary dismissal; and

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4.

If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

September 22, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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