Germany v. Coelho, et al.

Filing 13

ORDER Directing Plaintiff to File an Amended Complaint or Notify the Court of Intent o Proceed on Claim found to be Cognizable,signed by Magistrate Judge Stanley A. Boone on 06/27/17. ( Amended Complaint due 30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANKIE L. GERMANY,

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Plaintiff,
v.
M. COELHO, et al.,
Defendants.

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Case No.: 1:17-cv-00005-SAB (PC)
ORDER DIRECTING PLAINTIFF TO FILE AN
AMENDED COMPLAINT OR NOTIFY THE
COURT OF INTENT TO PROCEED ON CLAIM
FOUND TO BE COGNIZABLE
[ECF No. 12]

Plaintiff Frankie L. Germany is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the

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jurisdiction of the United States Magistrate Judge on March 21, 2017. Local Rule 302.

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Currently before the Court is Plaintiff’s first amended complaint, filed June 5, 2017.

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I.

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SCREENING REQUIREMENT

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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). 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 or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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FIRST AMENDED COMPLAINT ALLEGATIONS

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Plaintiff claims his Eighth Amendment rights were violated when prison official used

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excessive force against him and acted with deliberate indifference to his safety. On December 5,

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2016, while detained in North Kern State Prison, (“North Kern”) Plaintiff claims three Correctional

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Officers and one Sergeant used excessive force causing injuries to Plaintiff. Throughout the day and

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on a couple of instances, Plaintiff spoke with Officer Coelho and requested a cell move. Plaintiff

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reasons that his request for a cell move was warranted as Plaintiff sustained a broken arm by falling

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off the top bunk. Upon denying Plaintiff’s request, Plaintiff then asked to speak with a Sergeant, to

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which Officer Coelho replied, “hell no.” As such, Officer Coelho denied both requests. Later, during

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meal time in the dayroom, Plaintiff asked Officer Coelho if he could speak with a Sergeant, where

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Officer Coelho began to pepper spray Plaintiff without provocation. Immediately after, Officer
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Coelho and his co-workers then proceeded to kick and punch Plaintiff while he was on the ground.

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Defendants picked Plaintiff off the ground and proceeded in handcuffing him. While being escorted

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out of the building, Plaintiff was body slammed on the ground and was beat again. Defendant

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proceeded to pick Plaintiff off the ground and continued to escort Plaintiff to the program office where

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he was placed in a cell. Plaintiff named the following Defendants and claims they were also involved

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in this incident, Officer P. Ward, Officer Garcia-Fernandez, and Sergeant Hanson.

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Plaintiff further claims, while detained at the program office he was treated with deliberate

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indifference by being denied medical care by nurse Negre. Nurse Negre was on duty at the D yard

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facility and did not properly treated Plaintiff’s injuries, which consisted of: bleeding, bruises,

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scratches, and a previous injury of a broken arm. Nurse Negre looked at Plaintiff and said, “he was

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not hurt too bad”, and proceeded to walk away.

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Plaintiff is requesting a trial and monetary damages.

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III.

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DISCUSSION

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A.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue 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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Wilkins v. Gaddy, 559 U.S. 34, 37 (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation

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marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective component

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of an Eighth Amendment claim is contextual and responsive to contemporary standards of decency,

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Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses of force

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do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates

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contemporary standards of decency, regardless of whether or not significant injury is evident, Wilkins,

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559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289

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F.3d 623, 628 (9th Cir. 2002). In determining whether the use of force was wanton and unnecessary,

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courts may evaluate the extent of the prisoner’s injury, the need for application of force, the
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relationship between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503

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U.S. at 7 (quotation marks and citations omitted).

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with

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food, clothing, shelter, sanitation, medical care, and personal safety.

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In the amended complaint, the Court finds that Plaintiff has alleged sufficient facts to state a
plausible claim for excessive force. Plaintiff maintains the injuries he sustained were wholly and

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without provocation. Plaintiff contends that he requested a cell move which was denied, and when he

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requested to speak to a sergeant, Defendant Coelho began to pepper spray Plaintiff, and then

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Defendants Coelho, Garcia-Fernandez, Ward and Hanson punched and kicked him. Then, after

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Plaintiff was handcuffed, Defendants body slammed him to the ground. Assuming Plaintiff’s

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allegations are true, as this Court must, Plaintiff’s allegations are sufficient to state a cognizable claim

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for excessive force.

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B. Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Plaintiff’s allegations in the first amended complaint fail to give rise to a constitutional

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violation under the Eighth Amendment. First, Plaintiff fails to demonstrate that he was suffering from

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a serious medical need. Hudson, 503 U.S. at 9. Plaintiff only alleges he has “injuries” to his body,

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consisting of: bleeding, bruises, scratches, and a previous injury of a broken arm. Subsequently,

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Plaintiff does not mention any discomfort, pain, or how these injuries would result in further

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significant injuries. Wilhelm, 680 F.3d at 1122. Such conclusory and vague allegations fail to meet

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the objective prong for an Eighth Amendment violation. Second, Plaintiff fails to state how nurse

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Negre’s assessment demonstrates a failure to treat his injuries. By Plaintiff’s own admission, Negre

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assessed the situation and determined the injuries Plaintiff sustained were not serious. An inmate has

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a right to medical care, but in this instance, there are insufficient factual details to support a reasonable

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inference that Negre knew of and disregarded an excessive risk to serious medical needs.

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Accordingly, Plaintiff fails to state a cognizable claim for deliberate indifference to a serious medical

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need and leave to amend will be granted.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s first amended complaint states cognizable claim against Defendants Ward, Garcia-

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Fernandez, Hanson, and Coelho for excessive force in violation of the Eighth Amendment. Plaintiff’s

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complaint fails to state any other cognizable claims as Plaintiff has not sufficiently alleged facts for his

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deliberate indifference to serious medical need claim against Nurse Negre. Plaintiff is granted leave to

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file an amended complaint within thirty (30) days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

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1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on

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the claims for excessive force under the Eight Amendment, Plaintiff may so notify the Court in

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writing, and the Court will dismiss the other claims, and will forward Plaintiff four (4) summonses and

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four (4) USM-285 forms for completion and return. Upon receipt of the forms, the Court will direct
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the United States Marshal to initiate service of process.

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If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). With

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respect to exhibits, while they are permissible if incorporated by reference, Fed. R. Civ. P. 10(c), they

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are not necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). In other words, it is

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not necessary at this stage to submit evidence to prove the allegations in Plaintiff’s complaint because

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at this stage Plaintiff’s factual allegations will be accepted as true.

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’ ” “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556

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U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint. Finally, Plaintiff is advised that, should he choose to amend,

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he may not bring unrelated claims in the same action.

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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 civil rights complaint form;

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Within thirty (30) days from the date of service of this order, Plaintiff shall must either:
a.

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

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b.

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Notify the Court in writing that he does not wish to file an amended complaint

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and wishes to proceed only against Defendants Sergeant Hanson, Officer

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Coelho, Officer Garcia-Fernandez, and Officer Ward on his Eighth Amendment

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claim for excessive force; and
3.

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

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IT IS SO ORDERED.

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Dated:

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June 27, 2017
UNITED STATES MAGISTRATE JUDGE

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