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)

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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 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

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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 complaint, filed January 3, 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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COMPLAINT ALLEGATIONS

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On December 5, 2016, correctional officer Coelho made false allegations against Plaintiff and

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charged him with battery on a peace officer. Coelho had three inmates attack Plaintiff in the dayroom

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after he sprayed Plaintiff with pepper spray. Coelho and his co-workers then punched and kicked

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Plaintiff in the face, back and ribs, and continued to beat him after he was placed in handcuffs. After

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Plaintiff was taken out of the building, he was slammed on the ground face first and Coelho hit

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Plaintiff in the face and yelled profanity at him. Sergeant Hanson threatened Plaintiff and lied on his

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report about the incident. Officer P. Ward also beat Plaintiff and failed to decontaminate him after the

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use of the pepper spray. Officer Garcia-Fernandez used his hands and feet to beat up Plaintiff.

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III.

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DISCUSSION

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A.

Exhaustion of Administrative Remedies

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Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available

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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.

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Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief

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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.

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731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v.

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Nussle, 435 U.S. 516, 532 (2002).
Although the “failure to exhaust is an affirmative defense under the PLRA,” a prisoner’s

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complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears

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on its face. Jones v. Bock, 549 U.S. at 202, 215; see also Albino v. Baca, 747 F.3d 1162, 1169 (9th

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Cir. 2014) (en banc) (noting that where a prisoner’s failure to exhaust is clear from the fact of the

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complaint, his complaint is subject to dismissal for failure to state a claim, even at the screening

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stage); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to

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nonexhaustion is a valid ground for dismissal[.]”), overruled on other grounds by Albino, 747 F.3d at

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1166.

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In California, a prison inmate satisfies the administrative exhaustion requirement by following

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the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of

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Regulations. An inmate “may appeal any policy, decision, action, condition, or omission by the

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department or its staff that the inmate…can demonstrate as having a material adverse effect upon his

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or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the

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prisoner to proceed through all three levels of review. See Cal. Code Regs. tit. 15, § 3084.2(a). A

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decision at the third level of review, known as the director’s level of review, is not appealable and

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constitutes the third level of administrative review. Id.
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On the complaint form, Plaintiff acknowledges that there is an administrative grievance

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procedure available to his institution and he submitted a grievance regarding his claims. However,

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Plaintiff fails to indicate whether his inmate grievance was submitted to the highest level of review.

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Plaintiff is advised that in order to exhaust he must have completed the entire administrative process

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through the third and final level of review, if appropriate. However, “[a]n inmate has no obligation to

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appeal from a grant of relief, or a partial grant of relief that satisfies him, in order to exhaust his

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administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). Because it is not clear

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from the face of the complaint whether Plaintiff has fully exhausted, the Court cannot dismiss the

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complaint for failure to exhaust the administrative remedies.

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B.

Excessive Force/Failure to Protect

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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. Farmer v. Brennan, 511 U.S.

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825, 832-33 (1994) (quotations omitted). Prison officials have a duty under the Eighth Amendment to

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protect prisoners from violence at the hands of other prisoners because being violently assaulted in

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prison is simply not part of the penalty that criminal offenders pay for their offenses against society.

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Farmer, 511 U.S. at 833-34 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.

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2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable

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under the Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a

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substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference occurs

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when an official acted or failed to act despite his knowledge of a substantial risk of serious harm.

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Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.

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While Plaintiff may be able to state a cognizable claim for excessive force, in the present

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complaint Plaintiff does not explain what led to the incident, where the incident took place, what if

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any reasons were given by Defendants for their actions, whether Defendants engaged in other conduct

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to defuse the use of force, or why Plaintiff believes the use of force was malicious and sadistic to

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cause harm. Plaintiff’s vague allegation that Defendants Garcia-Fernandez and P. Ward beat him up is

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insufficient. In addition, the issuance of a false charge does not, in and of itself, support a claim under

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section 1983. See, e.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D.Cal.

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Sept. 18, 2014) (“Plaintiff’s protection from the arbitrary action of prison officials lies in ‘the

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procedural due process requirements as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane,

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747 F.2d 1137, 1140 (7th Cir. 1984)); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL

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294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from

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false disciplinary charges.”) (citing Chavira v. Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913,

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at *1 (N.D. Cal. Nov. 26, 2012) (“The Constitution demands due process, not error-free decision-

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making.”)); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D.Cal.

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Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right to be free from false accusations of
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misconduct, so the mere falsification of a [rules violation] report does not give rise to a claim under

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section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v.

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Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). Furthermore, to the extent Plaintiff is attempting to

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also allege a failure to protect claim, the factual allegations are too vague to give rise to a cognizable

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claim. Accordingly, Plaintiff fails to state a cognizable claim for excessive force and/or failure to

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protect and leave to amend will be granted.

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C.

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Mere verbal harassment or abuse, including the use of racial epithets, does not violate the

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Verbal Threats

Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v.

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Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Threats do not rise to the level of a constitutional

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violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

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Plaintiff’s allegations against Defendant Hanson amount to nothing more than verbal threats,

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which are insufficient to give rise to a constitutional claim. Accordingly, Plaintiff fails to state a

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cognizable claim against Defendant Hanson.

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .

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. .” Twombly, 550 U.S. at 555 (citations omitted).
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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of 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 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;

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2.

Plaintiff’s first amended complaint, filed January 3, 2017, is dismissed for failure to
state a claim;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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April 10, 2017
UNITED STATES MAGISTRATE JUDGE

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