McCurdy v. Kernan et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, for failure to state a cognizable claim for relief 1 signed by Magistrate Judge Stanley A. Boone on 10/17/2017. First Amended Complaint due by 11/20/2017. (Attachments: # 1 Complaint Form). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES C. McCURDY,

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Plaintiff,

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v.
S. KERNAN, et al.,
Defendants.

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Case No.: 1:17-cv-01356-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]

Plaintiff James C. McCurdy is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has not consented or declined to United States Magistrate

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Judge jurisdiction.

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Currently before the Court is Plaintiff’s complaint, filed on October 10, 2017.

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I.

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SCREENING REQUIREMENT

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

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

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

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff was transferred to California State Prison, Corcoran on August 18, 2015, and was

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housed in the mental health crisis bed unit because he had received a rules violation report for

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attempted murder on an officer. Plaintiff was placed on forced medication and suffers from Irritable

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Bowel Syndrome (IBS) which affects his everyday functions.

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Plaintiff was advised that his projected minimum early release date was May 2017, and that he

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would be housed in the security housing unit. While Plaintiff was housed at Corcoran he was seen by

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medical and mental health and provided medications to treat his chronic pain and other symptoms.

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Plaintiff also requested other accommodations such as medical transport and lower bunk chrono.

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On April 15, 2016, Plaintiff was told by custody officials to transpack because he was being
transferred to Pelican Bay State Prison. Plaintiff requested that custody staff alter medical and the
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commanding officer because he never attended a hearing where he was put up for transfer. Plaintiff

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also indicated that he required a medical transport because of his issues. The custody officer told

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Plaintiff, “if you don’t pack we will use force to transfer you without your property.” Plaintiff asked

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the captain who was responsible for the transfer and he advised that it came from “higher ups.”

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Plaintiff requested to speak with medical officials but his request was denied.

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The following Monday, Plaintiff was ordered to cuff-up because he was being transferred to

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Pelican Bay State Prison. Plaintiff was going to be put on the bus without his property, and the

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custody officer stated it was Plaintiff’s fault because he refused to transpack. Plaintiff was denied the

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ability to talk with the commanding officer and/or medical staff. Defendants threatened that if

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Plaintiff did not cuff-up and get on the bus, they were going to use force to extract him. They refused

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to allow Plaintiff to contact the medical department. Plaintiff was then subjected to excessive force by

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way of use of pepper spray and physical attack. When Plaintiff asked about his property, he was told

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that custody would pack it and it would follow him to Pelican Bay State Prison. Plaintiff then asked

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for the transport officer to obtain his glasses and legal work. Plaintiff’s glasses which were cracked

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were provided to him and he had a portion of his legal documents which had been placed in a

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pillowcase. Plaintiff never received any of his property, books, letters, pictures, address books,

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additional legal work, records, and receipts.

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Plaintiff seeks a declaration that his constitutional rights were violated, a preliminary and

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permanent injunction to provide him adequate medical treatment and transportation, along with

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compensatory and punitive damages.

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III.

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DISCUSSION

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A.

Linkage Under Section 1983

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada
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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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In this instance, Plaintiff names nineteen individuals as Defendants and sues them all in their

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individual and official capacities. However, Plaintiff fails to link each of the individual Defendants to

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affirmative actions or omissions which give rise to his alleged constitutional violations. Furthermore,

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the Court will not weed through the attached exhibits to determine and correct the linkage deficiencies.

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Accordingly, Plaintiff cannot proceed on his claims absent such linkage.

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B.

Individual Liability

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Supervisory personnel may not be held liable under section 1983 for the actions of subordinate

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employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967,

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977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75

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(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A

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supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation,

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or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal quotation

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marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act if

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supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).

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Plaintiff names several supervisory individuals, including S. Kernan (Secretary of CDCR),

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Dave Davey (Warden at Corcoran State Prison), Christ Lesniak (Captain at Corcoran State Prison),

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and J. Espinoza (Lieutenant at Corcoran State Prison). However, Plaintiff fails to allege any facts that

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support a claim for supervisory liability, and his claims are therefore not cognizable.

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C.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective

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component of an Eighth Amendment claim is contextual and responsive to contemporary standards of

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decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses

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of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is evident,

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Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002).

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Plaintiff fails to state a cognizable claim for excessive force. Although Plaintiff contends he

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was subjected to the use of excessive force and pepper spray, Plaintiff fails to set forth the factual

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allegations relating to the alleged use of physical force and subsequent injury. Plaintiff states only that

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Sergeant Hubbard used pepper spray, and “officers” used batons, shields, and physical force to extract

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him from his cell. However, Plaintiff fails to link any named individual to the alleged use of force,

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and Plaintiff does not indicate whether these individuals engaged in other conduct to defuse the use of

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force or what specific force was actually used, given his refusal to be transported. Accordingly, the

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Court cannot determine whether Plaintiff has stated a plausible claim for relief.

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D.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition
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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.
Plaintiff’s claim that he was not provided medical accommodations during his transport to

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Pelican Bay State Prison fails to give rise to a claim for deliberate indifference. Plaintiff has failed to

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set forth how any Defendant was deliberately indifferent to a serious medical need by transporting him

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from California State Prison-Corcoran to Pelican Bay State Prison. The fact that Plaintiff himself had

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medical and mental health concerns regarding his transfer, does not give rise to a constitutional claim

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for deliberate indifference. Accordingly, Plaintiff fails to state a cognizable claim for deliberate

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indifference to a serious medical need.

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E.

Deprivation of Property

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The Due Process Clause is not violated by the random, unauthorized deprivation of property so

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long as the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533

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(1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Plaintiff has an adequate post-

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deprivation remedy under California law and therefore, he may not pursue a due process claim arising

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out of the unlawful confiscation of his personal property. Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t

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Code §§810-895).
In this instance, Plaintiff alleges that Defendants improperly confiscated his property and it

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was never forwarded to him after his transfer. Plaintiff’s claim that his property was either lost or

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destroyed denotes a random and unauthorized deprivation of his property that is not actionable under

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section 1983. Accordingly, Plaintiff fails to state a cognizable claim for the deprivation of his

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property.

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F.

Declaratory and Injunctive Relief

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In addition to monetary damages, Plaintiff seeks declaratory and injunctive relief. “‘A case or

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controversy exists justifying declaratory relief only when the challenged government activity is not

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contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts

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what may well be a substantial adverse effect on the interests of the petitioning parties.’” Feldman v.

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Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Headwaters, Inc. v. Bureau of Land Management,

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Medford Dist., 893 F.2d 1012, 1015 (9th Cir. 1989) (internal quotations and citation omitted)).

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“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and

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settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty

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and controversy faced by the parties.” U.S. v. State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985)

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(citations omitted). The conduct at issue in this action occurred in April 2016 at California State

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Prison-Corcoran, and Plaintiff’s remedy is damages should he prevail on his claim that his

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constitutional rights were violated.

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Plaintiff also seeks an injunction directing that Defendants provide him adequate medical care

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and a special medical transport. “[T]hose who seek to invoke the jurisdiction of the federal courts

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must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual

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case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (citations omitted);

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Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). “Abstract injury is not enough.”

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Lyons, 461 U.S. at 101. “[P]laintiff must show that he has sustained or is immediately in danger of

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sustaining some direct injury as the result of the challenged official conduct and the injury or threat of

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injury must be both real and immediate, not conjectural or hypothetical.” Id. (internal quotations and

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citations omitted). “The key issue is whether the plaintiff is ‘likely to suffer future injury.’” Jones,

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444 F.3d at 1126 (quoting Lyons, 461 U.S. at 105). Furthermore, any award of equitable relief is

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governed by the Prison Litigation Reform Act, which provides in relevant part, “Prospective relief in

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any civil action with respect to prison conditions shall extend no further than necessary to correct the

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violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve

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any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than

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necessary to correct the violation of the Federal right, and is the least intrusive means necessary to

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correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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Plaintiff’s claim for injunctive relief is moot because Plaintiff is presently incarcerated at

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California State Prison-Sacramento, not California State Prison-Corcoran where the alleged actions

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took place. Plaintiff’s subsequent transfer out of California State Prison-Corcoran rendered moot any

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prayer for injunctive relief. See Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore,

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948 F.2d 517, 519 (9th Cir. 1991).

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G.

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Plaintiff sues each Defendant in his/her individual and official capacity.

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Official-Capacity Suits

“The Eleventh Amendment bars suits for money damages in federal court against a state, its

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agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d

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1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits

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seeking damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30

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(1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003).

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“Personal-capacity suits . . . seek to impose individual liability upon a government officer for

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actions taken under color of state law.” Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d 1047,

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1060-61 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the

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complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an official

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capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir.

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1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991). Because Plaintiff cannot proceed on a claim

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for monetary damages against any Defendant in his/her official capacity, his official capacity claims

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are subject to dismissal.

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IV.

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CONCLUSION AND ORDER

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

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

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

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.
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2007) (no “buckshot” complaints).

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

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

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

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

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

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

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. .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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

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

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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2.

Plaintiff’s complaint, filed October 10, 2017, is dismissed for failure to state a claim;

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3.

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

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4.

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

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IT IS SO ORDERED.

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Dated:

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October 17, 2017
UNITED STATES MAGISTRATE JUDGE

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