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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 QUINCY MOSLEY, 11 Plaintiff, 12 13 v. S. STEWART, 14 Defendant. 15 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) 16 THIRTY DAY DEADLINE 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate 21 Judge jurisdiction. No other parties have appeared in the action. 22 23 Plaintiff’s complaint is before the Court for screening. I. Screening Requirement 24 The Court is required to screen complaints brought by prisoners seeking relief 25 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 27 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 28 1 relief may be granted, or that seek monetary relief from a defendant who is immune from 2 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 3 thereof, that may have been paid, the court shall dismiss the case at any time if the court 4 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 5 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 II. Pleading Standard 7 Section 1983 “provides a cause of action for the deprivation of any rights, 8 privileges, or immunities secured by the Constitution and laws of the United States.” 9 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 10 Section 1983 is not itself a source of substantive rights, but merely provides a method for 11 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 12 (1989). 13 To state a claim under § 1983, a plaintiff must allege two essential elements: 14 (1) that a right secured by the Constitution or laws of the United States was violated and 15 (2) that the alleged violation was committed by a person acting under the color of state 16 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 17 1243, 1245 (9th Cir. 1987). 18 A complaint must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 20 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 23 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 24 that is plausible on its face.” Id. Facial plausibility demands more than the mere 25 possibility that a defendant committed misconduct and, while factual allegations are 26 accepted as true, legal conclusions are not. Id. at 677-78. 27 28 2 1 III. Plaintiff’s Allegations 2 Plaintiff is incarcerated at Kern Valley State Prison, where the acts giving rise to 3 his complaint occurred. His complaint names only Correctional Officer S. Stewart as a 4 defendant. He brings a claim of excessive force in violation of the Eighth Amendment. 5 His allegations may be summarized essentially as follows. 6 On September 2, 2016, Plaintiff was involved in an altercation with two other 7 inmates in the Facility A medical holding cells. Defendant Stewart and T. Rocha came to 8 the doorway of the holding cells and yelled for the inmates to get down. Before Plaintiff 9 could comply, Stewart pepper sprayed Plaintiff and twice hit him in the back of his head 10 with the pepper spray canister. Plaintiff lost consciousness. When he regained focus, he 11 was being dragged into the hallway. There, Plaintiff was on his stomach and Stewart sat 12 on Plaintiff’s back. Correctional Officer Castillo used his baton to hit Plaintiff in his legs 13 and buttocks. Plaintiff was moving due to pain. Officers yelled for him to “stop resisting,” 14 and kept hitting him. Sergeant Ventura arrived and joined in hitting Plaintiff with a baton. 15 Eventually, the officers stopped hitting Plaintiff, took him to medical for evaluation, 16 and then took him to Administrative Segregation on fictitious charges of battery on a 17 peace officer. 18 19 Plaintiff seeks monetary damages and to have the involved officers terminated. IV. Analysis 20 A. Unnamed Defendants 21 Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant 22 be named in the caption of the complaint. A complaint is subject to dismissal if “one 23 cannot determine from the complaint who is being sued, [and] for what relief. . . .” 24 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As stated, only Officer Stewart is 25 named as a Defendant. Accordingly, only allegations against Officer Stewart are 26 addressed. 27 Plaintiff will be given leave to amend to clarify whether he intends to pursue 28 claims against the other officers involved in the incident. If Plaintiff chooses to amend, he 3 1 must name each individual he intends to sue in the caption of his complaint and in the 2 section of the amended complaint form prompting him to list each defendant. 3 B. Excessive Force 4 The Cruel and Unusual Punishment Clause of the Eighth Amendment protects 5 prisoners from the use of excessive physical force. Farmer v. Brennan, 511 U.S. 825, 6 832 (1994). To state an excessive force claim, a plaintiff must allege facts to show that 7 the use of force involved an “unnecessary and wanton infliction of pain.” Jeffers v. 8 Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 319 9 (1986)). Whether the force applied inflicted unnecessary and wanton pain turns on 10 whether the “force was applied in a good-faith effort to maintain or restore discipline, or 11 maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must 12 look at the need for application of force; the relationship between that need and the 13 amount of force applied; the extent of the injury inflicted; the extent of the threat to the 14 safety of staff and inmates as reasonably perceived by prison officials; and any efforts 15 made to temper the severity of the response. See Whitley, 475 U.S. at 321. 16 Not “every malevolent touch by a prison guard gives rise to a federal cause of 17 action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and 18 unusual punishments necessarily excludes from constitutional recognition de minimis 19 uses of physical force, provided that the use of force is not of a sort repugnant to the 20 conscience of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v. 21 Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard 22 examines de minimis uses of force, not de minimis injuries). 23 Plaintiff alleges that Defendant Steward hit him with a pepper spray canister, 24 rendering him unconscious. While some use of force may be reasonable and expected 25 in the context of an altercation between inmates, the facts alleged are sufficient, at the 26 pleading stage, to suggest that the force used by Stewart may have been excessive. 27 28 4 1 C. 2 It appears Plaintiff may intend to allege that other officers failed to protect him 3 Failure to Protect from the attack by Defendant Stewart. 4 Prison officials have a duty under the Eighth Amendment to protect prisoners from 5 violence because being violently assaulted in prison is simply not part of the penalty that 6 criminal offenders pay for their offenses against society. Farmer, 511 U.S. at 833-34 7 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns 8 v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable 9 under the Eighth Amendment only if they demonstrate deliberate indifference to 10 conditions posing a substantial risk of serious harm to an inmate; and it is well settled 11 that deliberate indifference occurs when an official acted or failed to act despite his 12 knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 834, 841 13 (quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 14 15 Plaintiff will be given leave to amend to clarify whether he intends to pursue such a claim, against whom, and based on what facts. 16 D. False Charges 17 Plaintiff appears to contend that he received a false rules violation report in 18 relation to the incident. He does not identify the person responsible for the report or state 19 whether or how the report eventually was adjudicated. 20 The creation of false evidence, standing alone, is not actionable under § 1983 21 because falsely accusing an inmate of misconduct does not violate a right secured by 22 the Constitution or laws of the United States. See Hernandez v. Johnston, 833 F.2d 23 1316, 1319 (9th Cir. 1987) (independent right to accurate prison record has not been 24 recognized); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 294576, at *2 25 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from 26 false disciplinary charges.”); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 27 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally 28 guaranteed right to be free from false accusations of misconduct, so the mere 5 1 falsification of a report does not give rise to a claim under section 1983.”) (citing Sprouse 2 v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949, 3 951-53 (2d. Cir. 1986)). Instead, “Plaintiff’s protection from the arbitrary action of prison 4 officials lies in the procedural due process requirements as set forth in Wolff v. 5 McDonnell.” E.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D. 6 Cal. Sept. 18, 2014) (citing Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)); 7 Toscano v. Lewis, No. C-12-5893 EMC PR, 2013 WL 1632691, at *6 (N.D. Cal. Apr. 16, 8 2013) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989); Freeman, 808 F.2d 9 at 951; and Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir.1984)). 10 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 11 panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. 12 at 556. The minimum procedural requirements that must be met in such proceedings 13 are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner 14 receives written notice and the time of the hearing, so that the prisoner may prepare his 15 defense; (3) a written statement by the fact finders of the evidence they rely on and 16 reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his 17 defense, when permitting him to do so would not be unduly hazardous to institutional 18 safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is 19 illiterate or the issues presented are legally complex. Id. at 563-71. As long as the five 20 minimum Wolff requirements are met, due process has been satisfied. Walker v. 21 Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. 22 Connor, 515 U.S. 472 (1995). 23 In addition, “some evidence” must support the decision of the hearing officer, 24 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some 25 indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some 26 evidence” standard is not particularly stringent and the relevant inquiry is whether “there 27 is any evidence in the record that could support the conclusion reached. . . .” Hill, 472 28 U.S. at 455-56 (emphasis added). 6 1 E. 2 Plaintiff’s request to have the involved officers’ employment terminated is outside 3 the scope of this action. See 18 U.S.C. § 3626(a)(2). Accordingly, this action properly 4 proceeds as one for damages only. 5 V. Relief Sought Conclusion and Order 6 Plaintiff’s complaint states a cognizable Eighth Amendment excessive force claim 7 for damages against Defendant Stewart. His complaint states no other cognizable 8 claims. 9 The Court will grant Plaintiff the opportunity to file an amended complaint to cure 10 noted defects, to the extent he believes in good faith he can do so. Noll v. Carlson, 809 11 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate 12 that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. 13 at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is 14 plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiff should 15 note that although he has been given the opportunity to amend, it is not for the purposes 16 of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 17 complaints). Plaintiff should carefully read this screening order and focus his efforts on 18 curing the deficiencies set forth above. 19 If Plaintiff does not wish to file an amended complaint, and he is agreeable to 20 proceeding only on the claims found to be cognizable, he may file a notice informing the 21 Court that he does not intend to amend, and he is willing to proceed only on his 22 cognizable claim. To the extent other claims may be inferred from the complaint, they will 23 be dismissed, and the Court will provide Plaintiff with the requisite forms to complete and 24 return so that service of process may be initiated on Defendant Stewart. 25 If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it 26 must state what each named defendant did that led to the deprivation of Plaintiff’s 27 constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual 28 7 1 allegations must be [sufficient] to raise a right to relief above the speculative level. . . .” 2 Twombly, 550 U.S. at 555 (citations omitted). 3 Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay, 4 375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the 5 prior or superseded pleading,” Local Rule 220. 6 Based on the foregoing, it is HEREBY ORDERED that: 7 1. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form; 8 2. Within thirty (30) days from the date of service of this order, Plaintiff must 9 either: 10 a. File an amended complaint curing the deficiencies identified by the 11 Court in this order, or 12 b. Notify the Court in writing that he does not wish to file an amended 13 complaint and he is willing to proceed only on the claim found to be 14 cognizable in this order; and 15 3. If Plaintiff fails to comply with this order, the undersigned will dismiss this 16 action for failure to obey a court order and failure to prosecute. 17 18 19 IT IS SO ORDERED. Dated: September 19, 2017 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 8

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