Calihan v. King et al

Filing 11

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Sheila K. Oberto on 10/18/2017. Amended Complaint due by 11/13/2017. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNY CALIHAN,

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Plaintiff,

Case No. 1:17-cv-00535-LJO-SKO (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
(Doc. 1)

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KING, et al.,
TWENTY-ONE (21) DAY DEADLINE

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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Kenny Calihan, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a

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cognizable claim upon which relief may be granted and the Complaint is DISMISSED with leave

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to file a first amended complaint.

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B.

Screening Requirement and Standard

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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 an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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 “[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.
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If he chooses to file a first amended complaint, Plaintiff should make it as concise as
possible in no more than twenty-five (25) pages. Plaintiff should state which of his
constitutional rights he believes were violated by each Defendant and the facts that support each
contention. Plaintiff need not and should not cite legal authority for his claims in a first amended
complaint. If Plaintiff files a first amended complaint, his factual allegations will be screened
under the legal standards and authorities set forth in this order.
2.

Exhibits

Plaintiff=s Complaint is comprised of approximately six pages of factual allegations
followed by twenty-one pages of exhibits.
The Court is not a repository for the parties’ evidence. Originals, or copies of evidence
(i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the course of
litigation brings the evidence into question (for example, on a motion for summary judgment, at
trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended complaint,
each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must

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state “see Exhibit A” or something similar in order to direct the Court to the specific exhibit

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referenced. If the exhibit consists of more than one page, Plaintiff must also reference the
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specific page of the exhibit (i.e. “See Exhibit A, page 3”).

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Plaintiff may not merely refer to attached exhibits, as he has done in the Complaint, and
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expect the Court to ferret out the factual allegations he relies on to state a claim. At this point, the
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submission of evidence is premature as Plaintiff is only required to state a prima facie claim for
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relief. Plaintiff is reminded that, for screening purposes, the Court must assume that Plaintiff’s

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factual allegations are true. It is unnecessary for a plaintiff to submit exhibits in support of the
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allegations in a complaint.
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3.

Linkage Requirement

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The Civil Rights Act under which this action was filed provides:
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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
the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976). The Ninth Circuit has held that “[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.
Plaintiff must clearly identify which Defendant(s) he believes are responsible for each

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violation of his constitutional rights and set forth the supporting the factual basis, as a complaint

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must place each Defendant on notice of Plaintiff’s claims against him or her. See Austin v.

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Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). Further, although Plaintiff named inmate T. Haley

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as a defendant in this action, he cannot pursue claims against a fellow inmate since an inmate is

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not a state actor for purposes of § 1983.

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DISCUSSION
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A.
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Plaintiff’s Allegations

Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”), in Delano,

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California, but his allegations are based on circumstances that allegedly occurred at the California
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Correctional Institution (“CCI”), in Tehachapi, California. Plaintiff names Correctional Officers

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C. King, L. Elias, T. Starr, and inmate T. Haley as Defendants in this action.
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Plaintiff alleges that on July 27, 2016, C/O King called on her radio for all yard staff to
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report to the Rex-Deal housing unit. There, C/O King, C/O Elias, and C/O Starr “were part of
threats to Plaintiff regarding” the prison gang “Green Wall.” Although it is unclear from
Plaintiff’s sparse allegations, it appear that he alleges that a rule violation report was filed against

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him in which IM Haley gave a statement as a witness against Plaintiff, even though IM Haley was
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not present. Plaintiff indicates that he desires to pursue a claim under the Eighth Amendment for

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cruel and unusual punishment via threat to his safety.

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As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he is

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provided the applicable legal standards for his stated claims and an opportunity to file an

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amended complaint.

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B.

Legal Standards
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Eighth Amendment
a.

Cruel and Unusual Punishment

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 considered 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

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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). Plaintiff fails to state any allegations that show any

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degree of force was used against him on July 27, 2016, during the events he alleges occurred in

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front of the Rex Deal housing unit.

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b.

Safety

“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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(1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty “to take

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reasonable measures to guarantee the safety of inmates, which has been interpreted to include a

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duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th
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Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.

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2005)). 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 (1981). Second, subjectively, the prison official must “know of and disregard an excessive

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risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th

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Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511

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U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id. at 847.

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The Supreme Court has stated that a remedy for unsafe conditions need not await a tragic

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event; rather, where a risk/injury has yet to occur, it is plaintiff's burden to prove that his future

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health/safety is unreasonably endangered, “that it is contrary to current standards of decency for

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anyone to be so exposed against his will, and that prison officials are deliberately indifferent to

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his plight.” Helling, 509 U.S. at 33-35.

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The question under the Eighth Amendment is whether prison officials, acting with

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deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to

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his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has

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explained that “deliberate indifference entails something more than mere negligence . . . [but]

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something less than acts or omissions for the very purpose of causing harm or with the knowledge

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that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as

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equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id.,

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at 836-37.
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Plaintiff fails to state any allegations to show he was subjected to conditions that posed a

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substantial risk of harm that the named Defendants were aware of and failed to take steps to

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abate.
c.

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Verbal Threats and Harassment

Though undoubtedly being yelled at and threatened as described in Plaintiff’s attached

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exhibits is unpleasant and unprofessional, it is not actionable. See Oltarzewski v. Ruggiero, 830

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F.2d 136, 139 (9th Cir. 1987) (mere verbal harassment or abuse, including the use of racial

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epithets, is not sufficient to state a constitutional deprivation under section 1983; see also Gaut v.

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Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (threats do not rise to the level of a constitutional

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violation).
2.

Retaliation

Prisoners have a First Amendment right to file grievances against prison officials and to

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be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir.

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2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five

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elements. Id. at 1114.

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First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The

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filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th

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Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);

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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the

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defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must

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allege a causal connection between the adverse action and the protected conduct. Waitson, 668

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F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a

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person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568

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(internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling

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effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at

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1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must

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allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the
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correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985).
Plaintiff fails to state any allegations showing that he engaged in protected conduct which
was the precipitating animus for Defendants’ actions.
ORDER

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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 twenty-one (21) days. If Plaintiff needs an extension of time to

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comply with this order, he shall file a motion seeking an extension of time no later than twenty-

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one (21) days from the date of service of this order.

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

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resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980). The first amended complaint must allege in specific terms how each named defendant is

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involved. There can be no liability under section 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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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 reminded 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

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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).

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Based on the foregoing, it is HEREBY ORDERED that:

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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 twenty-one (21) days from the date of service of this order, Plaintiff must

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file a first amended complaint curing the deficiencies identified by the Court in

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this order or a notice of voluntary dismissal; and
4.

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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 cognizable claim.

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IT IS SO ORDERED.
Dated:

October 18, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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