Mosley v. Stewart

Filing 8

ORDER REQUIRING Plaintiff to Either File a First Amended Complaint or Notify Court of Willingness to Proceed only on Cognizable Excessive Force Claim against Defendant Stewart; Thirty Day Deadline signed by Magistrate Judge Michael J. Seng on 9/19/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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QUINCY MOSLEY,

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Plaintiff,

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v.
S. STEWART,

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Defendant.

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CASE No. 1:17-cv-00852-MJS (PC)
ORDER REQUIRING PLAINTIFF TO
EITHER FILE A FIRST AMENDED
COMPLAINT OR NOTIFY COURT OF
WILLINGNESS TO PROCEED ONLY ON
COGNIZABLE EXCESSIVE FORCE
CLAIM AGAINST DEFENDANT
STEWART
(ECF No. 1)

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THIRTY DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate

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Judge jurisdiction. No other parties have appeared in the action.

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Plaintiff’s complaint is before the Court for screening.
I.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing 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 to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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Plaintiff is incarcerated at Kern Valley State Prison, where the acts giving rise to

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his complaint occurred. His complaint names only Correctional Officer S. Stewart as a

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defendant. He brings a claim of excessive force in violation of the Eighth Amendment.

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His allegations may be summarized essentially as follows.

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On September 2, 2016, Plaintiff was involved in an altercation with two other

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inmates in the Facility A medical holding cells. Defendant Stewart and T. Rocha came to

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the doorway of the holding cells and yelled for the inmates to get down. Before Plaintiff

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could comply, Stewart pepper sprayed Plaintiff and twice hit him in the back of his head

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with the pepper spray canister. Plaintiff lost consciousness. When he regained focus, he

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was being dragged into the hallway. There, Plaintiff was on his stomach and Stewart sat

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on Plaintiff’s back. Correctional Officer Castillo used his baton to hit Plaintiff in his legs

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and buttocks. Plaintiff was moving due to pain. Officers yelled for him to “stop resisting,”

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and kept hitting him. Sergeant Ventura arrived and joined in hitting Plaintiff with a baton.

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Eventually, the officers stopped hitting Plaintiff, took him to medical for evaluation,

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and then took him to Administrative Segregation on fictitious charges of battery on a

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peace officer.

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Plaintiff seeks monetary damages and to have the involved officers terminated.
IV.

Analysis

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A.

Unnamed Defendants

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Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant

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be named in the caption of the complaint. A complaint is subject to dismissal if “one

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cannot determine from the complaint who is being sued, [and] for what relief. . . .”

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McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As stated, only Officer Stewart is

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named as a Defendant. Accordingly, only allegations against Officer Stewart are

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addressed.

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Plaintiff will be given leave to amend to clarify whether he intends to pursue

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claims against the other officers involved in the incident. If Plaintiff chooses to amend, he
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must name each individual he intends to sue in the caption of his complaint and in the

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section of the amended complaint form prompting him to list each defendant.

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B.

Excessive Force

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The Cruel and Unusual Punishment Clause of the Eighth Amendment protects

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prisoners from the use of excessive physical force. Farmer v. Brennan, 511 U.S. 825,

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832 (1994). To state an excessive force claim, a plaintiff must allege facts to show that

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the use of force involved an “unnecessary and wanton infliction of pain.” Jeffers v.

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Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 319

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(1986)). Whether the force applied inflicted unnecessary and wanton pain turns on

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whether the “force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must

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look at the need for application of force; the relationship between that need and the

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amount of force applied; the extent of the injury inflicted; the extent of the threat to the

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safety of staff and inmates as reasonably perceived by prison officials; and any efforts

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made to temper the severity of the response. See Whitley, 475 U.S. at 321.

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Not “every malevolent touch by a prison guard gives rise to a federal cause of

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action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and

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unusual punishments necessarily excludes from constitutional recognition de minimis

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uses of physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard

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examines de minimis uses of force, not de minimis injuries).

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Plaintiff alleges that Defendant Steward hit him with a pepper spray canister,

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rendering him unconscious. While some use of force may be reasonable and expected

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in the context of an altercation between inmates, the facts alleged are sufficient, at the

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pleading stage, to suggest that the force used by Stewart may have been excessive.

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C.

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It appears Plaintiff may intend to allege that other officers failed to protect him

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Failure to Protect

from the attack by Defendant Stewart.

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Prison officials have a duty under the Eighth Amendment to protect prisoners from

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violence because being violently assaulted in prison is simply not part of the penalty that

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criminal offenders pay for their offenses against society. Farmer, 511 U.S. at 833-34

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(quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns

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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

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conditions posing a substantial risk of serious harm to an inmate; and it is well settled

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that deliberate indifference occurs when an official acted or failed to act despite his

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knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 834, 841

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(quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.

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Plaintiff will be given leave to amend to clarify whether he intends to pursue such
a claim, against whom, and based on what facts.

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D.

False Charges

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Plaintiff appears to contend that he received a false rules violation report in

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relation to the incident. He does not identify the person responsible for the report or state

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whether or how the report eventually was adjudicated.

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The creation of false evidence, standing alone, is not actionable under § 1983

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because falsely accusing an inmate of misconduct does not violate a right secured by

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the Constitution or laws of the United States. See Hernandez v. Johnston, 833 F.2d

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1316, 1319 (9th Cir. 1987) (independent right to accurate prison record has not been

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recognized); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 294576, at *2

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

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false disciplinary charges.”); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013

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WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally

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guaranteed right to be free from false accusations of misconduct, so the mere
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falsification of a report does not give rise to a claim under section 1983.”) (citing Sprouse

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v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949,

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951-53 (2d. Cir. 1986)). Instead, “Plaintiff’s protection from the arbitrary action of prison

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officials lies in the procedural due process requirements as set forth in Wolff v.

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McDonnell.” E.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D.

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Cal. Sept. 18, 2014) (citing Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984));

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Toscano v. Lewis, No. C-12-5893 EMC PR, 2013 WL 1632691, at *6 (N.D. Cal. Apr. 16,

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2013) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989); Freeman, 808 F.2d

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at 951; and Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir.1984)).

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S.

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at 556. The minimum procedural requirements that must be met in such proceedings

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are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner

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receives written notice and the time of the hearing, so that the prisoner may prepare his

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defense; (3) a written statement by the fact finders of the evidence they rely on and

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reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his

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defense, when permitting him to do so would not be unduly hazardous to institutional

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safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is

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illiterate or the issues presented are legally complex. Id. at 563-71. As long as the five

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minimum Wolff requirements are met, due process has been satisfied. Walker v.

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Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v.

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Connor, 515 U.S. 472 (1995).

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In addition, “some evidence” must support the decision of the hearing officer,

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Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some

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indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some

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evidence” standard is not particularly stringent and the relevant inquiry is whether “there

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is any evidence in the record that could support the conclusion reached. . . .” Hill, 472

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U.S. at 455-56 (emphasis added).
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E.

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Plaintiff’s request to have the involved officers’ employment terminated is outside

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the scope of this action. See 18 U.S.C. § 3626(a)(2). Accordingly, this action properly

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proceeds as one for damages only.

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V.

Relief Sought

Conclusion and Order

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Plaintiff’s complaint states a cognizable Eighth Amendment excessive force claim

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for damages against Defendant Stewart. His complaint states no other cognizable

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claims.

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The Court will grant Plaintiff the opportunity to file an amended complaint to cure

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noted defects, to the extent he believes in good faith he can do so. Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate

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that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S.

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at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is

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plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiff should

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note that although he has been given the opportunity to amend, it is not for the purposes

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of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints). Plaintiff should carefully read this screening order and focus his efforts on

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curing the deficiencies set forth above.

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If Plaintiff does not wish to file an amended complaint, and he is agreeable to

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proceeding only on the claims found to be cognizable, he may file a notice informing the

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Court that he does not intend to amend, and he is willing to proceed only on his

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cognizable claim. To the extent other claims may be inferred from the complaint, they will

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be dismissed, and the Court will provide Plaintiff with the requisite forms to complete and

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return so that service of process may be initiated on Defendant Stewart.

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If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it

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must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual

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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 prior complaint, see Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the

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prior or superseded pleading,” Local Rule 220.

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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 a blank civil rights complaint form;

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2. Within thirty (30) days from the date of service of this order, Plaintiff must

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either:

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a. File an amended complaint curing the deficiencies identified by the

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Court in this order, or

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

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complaint and he is willing to proceed only on the claim found to be

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cognizable in this order; and

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3. If Plaintiff fails to comply with this order, the undersigned will dismiss this

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action for failure to obey a court order and failure to prosecute.

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IT IS SO ORDERED.
Dated:

September 19, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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