Germany v. Coelho, et al.

Filing 8

ORDER DISMISSING 1 COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Stanley A. Boone on 4/10/2017. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKIE L. GERMANY, 12 13 14 15 16 17 Plaintiff, v. M. COELHO, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00005-SAB (PC) ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 1] Plaintiff Frankie L. Germany is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the 19 jurisdiction of the United States Magistrate Judge on March 21, 2017. Local Rule 302. 20 Currently before the Court is Plaintiff’s complaint, filed January 3, 2017. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 27 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 28 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 1 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 6 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 7 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 8 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 9 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 10 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 11 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 12 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 13 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 14 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 15 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 16 U.S. at 678; Moss, 572 F.3d at 969. 17 II. 18 COMPLAINT ALLEGATIONS 19 On December 5, 2016, correctional officer Coelho made false allegations against Plaintiff and 20 charged him with battery on a peace officer. Coelho had three inmates attack Plaintiff in the dayroom 21 after he sprayed Plaintiff with pepper spray. Coelho and his co-workers then punched and kicked 22 Plaintiff in the face, back and ribs, and continued to beat him after he was placed in handcuffs. After 23 Plaintiff was taken out of the building, he was slammed on the ground face first and Coelho hit 24 Plaintiff in the face and yelled profanity at him. Sergeant Hanson threatened Plaintiff and lied on his 25 report about the incident. Officer P. Ward also beat Plaintiff and failed to decontaminate him after the 26 use of the pepper spray. Officer Garcia-Fernandez used his hands and feet to beat up Plaintiff. 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. Exhaustion of Administrative Remedies 4 Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, “[n]o action shall be brought 5 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 6 confined in any jail, prison, or other correctional facility until such administrative remedies as are 7 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 8 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. 9 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief 10 sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 11 731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. 12 Nussle, 435 U.S. 516, 532 (2002). Although the “failure to exhaust is an affirmative defense under the PLRA,” a prisoner’s 13 14 complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears 15 on its face. Jones v. Bock, 549 U.S. at 202, 215; see also Albino v. Baca, 747 F.3d 1162, 1169 (9th 16 Cir. 2014) (en banc) (noting that where a prisoner’s failure to exhaust is clear from the fact of the 17 complaint, his complaint is subject to dismissal for failure to state a claim, even at the screening 18 stage); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to 19 nonexhaustion is a valid ground for dismissal[.]”), overruled on other grounds by Albino, 747 F.3d at 20 1166. 21 In California, a prison inmate satisfies the administrative exhaustion requirement by following 22 the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of 23 Regulations. An inmate “may appeal any policy, decision, action, condition, or omission by the 24 department or its staff that the inmate…can demonstrate as having a material adverse effect upon his 25 or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the 26 prisoner to proceed through all three levels of review. See Cal. Code Regs. tit. 15, § 3084.2(a). A 27 decision at the third level of review, known as the director’s level of review, is not appealable and 28 constitutes the third level of administrative review. Id. 3 On the complaint form, Plaintiff acknowledges that there is an administrative grievance 1 2 procedure available to his institution and he submitted a grievance regarding his claims. However, 3 Plaintiff fails to indicate whether his inmate grievance was submitted to the highest level of review. 4 Plaintiff is advised that in order to exhaust he must have completed the entire administrative process 5 through the third and final level of review, if appropriate. However, “[a]n inmate has no obligation to 6 appeal from a grant of relief, or a partial grant of relief that satisfies him, in order to exhaust his 7 administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). Because it is not clear 8 from the face of the complaint whether Plaintiff has fully exhausted, the Court cannot dismiss the 9 complaint for failure to exhaust the administrative remedies. 10 B. Excessive Force/Failure to Protect 11 The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments 12 Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For 13 claims arising out of the use of excessive physical force, the issue is “whether force was applied in a 14 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 15 Wilkins v. Gaddy, 559 U.S. 34, 37 (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation 16 marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective component 17 of an Eighth Amendment claim is contextual and responsive to contemporary standards of decency, 18 Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses of force 19 do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates 20 contemporary standards of decency, regardless of whether or not significant injury is evident, Wilkins, 21 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 22 F.3d 623, 628 (9th Cir. 2002). In determining whether the use of force was wanton and unnecessary, 23 courts may evaluate the extent of the prisoner’s injury, the need for application of force, the 24 relationship between that need and the amount of force used, the threat reasonably perceived by the 25 responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 26 U.S. at 7 (quotation marks and citations omitted). 27 /// 28 /// 4 1 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 2 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 3 Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with 4 food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 5 825, 832-33 (1994) (quotations omitted). Prison officials have a duty under the Eighth Amendment to 6 protect prisoners from violence at the hands of other prisoners because being violently assaulted in 7 prison is simply not part of the penalty that criminal offenders pay for their offenses against society. 8 Farmer, 511 U.S. at 833-34 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 9 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable 10 under the Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a 11 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference occurs 12 when an official acted or failed to act despite his knowledge of a substantial risk of serious harm. 13 Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 14 While Plaintiff may be able to state a cognizable claim for excessive force, in the present 15 complaint Plaintiff does not explain what led to the incident, where the incident took place, what if 16 any reasons were given by Defendants for their actions, whether Defendants engaged in other conduct 17 to defuse the use of force, or why Plaintiff believes the use of force was malicious and sadistic to 18 cause harm. Plaintiff’s vague allegation that Defendants Garcia-Fernandez and P. Ward beat him up is 19 insufficient. In addition, the issuance of a false charge does not, in and of itself, support a claim under 20 section 1983. See, e.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D.Cal. 21 Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary action of prison officials lies in ‘the 22 procedural due process requirements as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane, 23 747 F.2d 1137, 1140 (7th Cir. 1984)); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 24 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from 25 false disciplinary charges.”) (citing Chavira v. Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913, 26 at *1 (N.D. Cal. Nov. 26, 2012) (“The Constitution demands due process, not error-free decision- 27 making.”)); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D.Cal. 28 Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free from false accusations of 5 1 misconduct, so the mere falsification of a [rules violation] report does not give rise to a claim under 2 section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. 3 Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). Furthermore, to the extent Plaintiff is attempting to 4 also allege a failure to protect claim, the factual allegations are too vague to give rise to a cognizable 5 claim. Accordingly, Plaintiff fails to state a cognizable claim for excessive force and/or failure to 6 protect and leave to amend will be granted. 7 C. 8 Mere verbal harassment or abuse, including the use of racial epithets, does not violate the 9 Verbal Threats Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. 10 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Threats do not rise to the level of a constitutional 11 violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 12 Plaintiff’s allegations against Defendant Hanson amount to nothing more than verbal threats, 13 which are insufficient to give rise to a constitutional claim. Accordingly, Plaintiff fails to state a 14 cognizable claim against Defendant Hanson. 15 IV. 16 CONCLUSION AND ORDER 17 For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be 18 granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v. 19 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by 20 adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 21 2007) (no “buckshot” complaints). 22 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 23 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 24 Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties 25 and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 26 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as 27 true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . 28 . .” Twombly, 550 U.S. at 555 (citations omitted). 6 1 Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 2 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be 3 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All 4 causes of action alleged in an original complaint which are not alleged in an amended complaint are 5 waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 6 1981)); accord Forsyth, 114 F.3d at 1474. 7 Based on the foregoing, it is HEREBY ORDERED that: 8 1. The Clerk’s Office shall send Plaintiff an amended civil rights complaint form; 9 2. Plaintiff’s first amended complaint, filed January 3, 2017, is dismissed for failure to state a claim; 10 3. 11 Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 12 4. 13 If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed for failure to state a claim. 14 15 16 IT IS SO ORDERED. 17 Dated: 18 April 10, 2017 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?