Bracken v. Duran, et al.,

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 06/19/2017. (Attachments: # 1 Amended Complaint Form, # 2 1983 Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUSTIN BRACKEN,
Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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Case No. 1:17-cv-00306-AWI-JLT (PC)

DURAN, et al.,

(Doc. 4)
21-DAY DEADLINE
Defendants.

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In this action, Plaintiff alleges that he was subjected to three incidents of excessive force
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at the hands of correctional officers at the California Correctional Institute (“CCI”) in Tehachapi,

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California. As discussed below, the complaint violates Federal Rules of Civil Procedure 18 and
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20 because Plaintiff’s allegations against the officers do not appear to be related. Thus, the

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complaint is dismissed with leave to file a first amended complaint.
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A.

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, 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).

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B.

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Plaintiff seeks monetary damages for of three incidents: (1) on September 9/25/2015,

Summary of Plaintiff=s Complaint

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Plaintiff alleges he was assaulted by correctional officers after Officer Duran discovered Plaintiff

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masturbating during 5:00 p.m. counts; (2) on January 8, 2016, around 8:00 p.m. Officer

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Hernandez came into Plaintiff cell and kicked Plaintiff five times in the back while he slept; and

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(3) on February 25, 2016, Officer Lima rushed into Plaintiff’s cell and removed the papers

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Plaintiff had used to cover his door and left; Officer Lima returned to escort Plaintiff to the

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sergeant regarding Plaintiff having “boarded-up,” but during the escort, Officer Lima had

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Plaintiff in a choke hold and kept shoving Plaintiff’s head against the wall while the other

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escorting officer hit Plaintiff a few times in the back. Plaintiff delineates claims for “excessive

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force” and “threat to safety” and seeks monetary damages.

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Though Plaintiff has stated two cognizable claims for excessive force, the Court is unable

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to discern any relation between his claims to allow them to proceed in a single action. Thus,

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Plaintiff is given the pleading requirements, the standards for his stated claims, and leave to file a

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first amended complaint.

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C.

Pleading Requirements
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Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief as an

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original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as

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alternate claims, numerous claims against an opposing party. However, Plaintiff may not bring

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unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claims arise

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out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there

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are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d

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1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d

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1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the
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Court review the additional claims to determine if they may be joined under Rule 18(a), which

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permits the joinder of multiple claims against the same party.

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The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. excessive force by different actors on different dates, under different

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factual events) does not make claims related for purposes of Rule 18(a). Plaintiff’s allegations

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against each of the three correctional officers he named as Defendants do not appear related. All

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claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is

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cautioned that if he fails to elect which category of claims to pursue and his amended complaint

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sets forth improperly joined claims, the Court will determine which claims should proceed and

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which claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir.

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2013). Whether any claims will be subject to severance by future order will depend on the

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viability of claims pled in the amended complaint.

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2.

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 “[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 “sufficient 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 “plaintiffs [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,”

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

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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

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

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concise as possible. He should simply state which of his constitutional rights he feels were

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violated by each Defendant and its factual basis. Where the allegations against two or more

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Defendants are factually intertwined, Plaintiff need not repeat the factual allegations separately

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against each Defendant. Rather, Plaintiff should present his factual allegations and identify the

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Defendants he feels are thereby implicated. Plaintiff need not cite legal authority for his claims in

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a first amended complaint as his factual allegations are accepted as true. The amended complaint

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should be clearly legible (see Local Rule 130(b)), and double-spaced pursuant to Local Rule

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130(c).

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3.

Linkage Requirement

The Civil Rights Act (42 U.S.C. ' 1983) requires that there be an actual connection or link

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between the actions of the defendants and the deprivation alleged to have been suffered by

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

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U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation

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of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts or omits to perform an act which he is legally required to

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do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743
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(9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each

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named defendant with some affirmative act or omission that demonstrates a violation of

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Plaintiff=s federal rights.

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Plaintiff must clearly identify which Defendant(s) he feels are responsible for each

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violation of his constitutional rights and their factual basis as his Complaint must put each

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Defendant on notice of Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d

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1167, 1171 (9th Cir. 2004). Plaintiff is cautioned that he must use surnames whenever possible as

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allegations such as “the officers” or “two officers” or “others” are insufficient to link an

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individual defendant to factual allegations.

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D.

Claim for Relief
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Excessive Force

The Eighth Amendment prohibits those who operate our prisons from using “excessive

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physical force against inmates.” Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682

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F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have “a duty to take reasonable steps to

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protect inmates from physical abuse”); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th

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Cir.1988), cert. denied, 490 U.S. 1012 (1989) (“prison administrators’ indifference to brutal

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behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim”). As

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courts have succinctly observed, “[p]ersons are sent to prison as punishment, not for

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punishment.” Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted), aff=d,

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973 F.2d 686 (8th Cir.1992). “Being violently assaulted in prison is simply not ‘part of the

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penalty that criminal offenders pay for their offenses against society.’” Farmer, 511 U.S. at 834,

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(quoting Rhodes, 452 U.S. at 347).

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When a prison official stands accused of using excessive physical force in violation of the

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cruel and unusual punishment clause of the Eighth Amendment, the question turns on “whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically for the purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was

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wanton and unnecessary, it is proper to consider factors such as the need for application of force,
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the relationship between the need and the amount of force used, the threat reasonably perceived

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by the responsible officials, and any efforts made to temper the severity of the forceful response.

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Hudson, 503 U.S. at 7. The extent of a prisoner’s injury is also a factor that may suggest whether

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the use of force could plausibly have been thought necessary in a particular situation. Id.

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Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not

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determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel

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and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9.

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Although the Eighth Amendment protects against cruel and unusual punishment, this does
not mean that federal courts can or should interfere whenever prisoners are inconvenienced or

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suffer de minimis injuries. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (8th Amendment

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excludes from constitutional recognition de minimis uses of force). The malicious and sadistic

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use of force to cause harm always violates contemporary standards of decency, regardless of

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whether significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th

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Cir.2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de

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minimis injuries)). “Injury and force, . . . , are only imperfectly correlated, and it is the latter that

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ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to

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pursue an excessive force claim merely because he has the good fortune to escape without serious

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injury.” Wilkins v. Gaddy, -- S.Ct. --, 2010 WL 596153, *3 (Feb. 22, 2010). However, not

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“every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503

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U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily

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excludes from constitutional recognition de minimis uses of physical force, provided that the use

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of force is not of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (internal

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quotations marks and citations omitted).

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Plaintiff’s allegations against Officer Duran are not cognizable since the only allegation

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that Plaintiff links Officer Duran to them is that Officer Duran discovered Plaintiff masturbating

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during 5:00 pm counts. This does not amount to a cognizable excessive force claim.

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Plaintiff’s allegations against Officer Hernandez, for kicking him five times in the back
while he slept, on January 8, 2016, state a cognizable excessive force claim.
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Plaintiff’s allegations against Officer Lima, for escorting him in a chokehold and

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repeatedly shoving Plaintiff’s head into the wall while the other escorting officer hit Plaintiff in

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the back also states a cognizable excessive force claim. However, there is no relation between

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Plaintiff’s allegations against Officer Hernandez and Officer Lima to allow them to proceed in the

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same lawsuit without violating Rules 18 and 20. Further, Plaintiff may be able to identify the

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officer who hit him in the back while being escorted with Officer Lima and may do so in an

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amended complaint if desired.

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E.

Conclusion

For the reasons set forth above, Plaintiff’s Complaint is defective. Thus, he may proceed
in one of two ways. He may file an amended complaint naming only officer Lima or officer
Hernandez and file a second action naming the remaining officer. Alternatively, he may alert the
Court which of these officers he wishes to pursue in this action and still file the separate action
against the second officer if he chooses. He must take either action within 21 days and his failure
to do so will result in the Court dismissing this action
Finally, if Plaintiff no longer desires to pursue this action, he may file a notice of
voluntary dismissal.

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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).
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.
The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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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).
Based on the foregoing, the Court ORDERS:

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1.

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Plaintiff may proceed in one of three ways:
a. If the plaintiff wishes to proceed on the claims against officers Lima

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and Hernandez, he can file an amended complaint in this action naming only one

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of the officers (either Lima or Hernandez) and file a separate action against the

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officer he does not name in this action;
b.

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Alternatively, he can alert the Court that he wishes to proceed in

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this action against only one of the officers (either Lima or Hernandez) and notify

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which officer he wishes to pursue here. If he chooses this course of action, he can

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still file the separate action against the officer he does not name in this action;
c.

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3.

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He must take one of these actions within 21 days;

action;

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He may choose to abandon the action and voluntarily dismiss the

c.

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The Clerk’s Office shall send Plaintiff two civil rights complaint forms.

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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:

June 19, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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