Wolinski v. McDonald et al

Filing 28

ORDER signed by Magistrate Judge Craig M. Kellison on 11/15/11 ORDERING that Plaintiffs complaint is DISMISSED with leave to amend; and plaintiff shall file a amended complaint within 30 days of the date of service of this order. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSZTOF F. WOLINSKI,

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Plaintiff,
vs.

ORDER

MIKE D. McDONALD, et al.,

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Defendants.

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No. CIV S-11-1932-GEB-CMK-P

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Docs. 1, 9).1

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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. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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Plaintiff has several other motions and filings also pending. Those motions and
filing swill be addressed by separate order.
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff brings this action against fifteen individuals, plus several DOE

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defendants, for various alleged constitutional violations. His allegations range from unhealthy

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living conditions to inadequate medical care, sexual assault to denial of access to the court.

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These claims are against separate and distinct individuals, without any common link.

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II. DISCUSSION

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Plaintiff is attempting to bring this action against several unrelated individuals on

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separate and unrelated claims. The Federal Rules of Civil Procedure allow a party to assert “as

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many claims as it has against an opposing party,” but does not provide for unrelated claims

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against several different defendants to be raised in the same action. Fed. R. Civ. Proc. 18(a).

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“Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not

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be joined with unrelated Claim B against Defendant 2. Unrelated claims against different

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defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). As

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far as the court can determine, plaintiff’s claims against the various defendants are unrelated.

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Thus, those unrelated claims against several different defendants, should be separated into

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different actions.

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Plaintiff also fails to provide any connection or link for some of the defendants.

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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link

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between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t

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of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person

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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he

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does an affirmative act, participates in another's affirmative acts, or omits to perform an act

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which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Furthermore, plaintiff names supervisory personnel as defendants, apparently

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based on their position alone and not on any personal conduct. Supervisory personnel are

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generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983).

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A supervisor is only liable for the constitutional violations of subordinates if the supervisor

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participated in or directed the violations. See id. The Supreme Court has rejected the notion that

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a supervisory defendant can be liable based on knowledge and acquiescence in a subordinate’s

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unconstitutional conduct because government officials, regardless of their title, can only be held

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liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009). When a defendant holds a supervisory position, the causal

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link between such defendant and the claimed constitutional violation must be specifically

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alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of

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supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents,
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673 F.2d 266, 268 (9th Cir. 1982). “[A] plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has violated the constitution.” Iqbal,

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129 S. Ct. at 1948.

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As to the specific claims the court can decipher from the complaint, the standards

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for each one will be outlined for plaintiff’s benefit. As discussed below, if plaintiff chooses to

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file an amended complaint, he will be required to choose which claims to proceed with in this

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action and which to raise in a separate action. He cannot, however, proceed with all of his claims

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in this one action.

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A.

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DUE PROCESS

The Due Process Clause protects prisoners from being deprived of life, liberty, or

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

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state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

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deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.

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of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

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defined, by existing rules that stem from an independent source – such as state law – and which

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secure certain benefits and support claims of entitlement to those benefits. See id.

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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-

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time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v.
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Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425

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U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or

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in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47

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(1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

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release from prison were cognizable under § 1983).

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Where a prisoner alleges the deprivation of a liberty or property interest caused by

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the unauthorized action of a prison official, there is no claim cognizable under 42 U.S.C. § 1983

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if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113,

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129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s post-deprivation remedy

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may be adequate even though it does not provide relief identical to that available under § 1983.

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See Hudson, 468 U.S. at 531 n.11. An available state common law tort claim procedure to

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recover the value of property is an adequate remedy. See Zinermon, 494 U.S. at 128-29.

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Finally, with respect to prison disciplinary proceedings, due process requires
prison officials to provide the inmate with: (1) a written statement at least 24 hours before the
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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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B.

ACCESS TO THE COURTS:

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Prisoners have a First Amendment right of access to the courts. See Lewis v.

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Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall,

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64 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance

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procedures). This right includes petitioning the government through the prison grievance

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process. See id. Prison officials are required to “assist inmates in the preparation and filing of

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meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance

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from persons trained in the law.” Bounds, 430 U.S. at 828. The right of access to the courts,

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however, only requires that prisoners have the capability of bringing challenges to sentences or

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conditions of confinement. See Lewis, 518 U.S. at 356-57. Moreover, the right is limited to

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non-frivolous criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 &

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354-55. Therefore, the right of access to the courts is only a right to present these kinds of claims

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to the court, and not a right to discover claims or to litigate them effectively once filed. See id. at

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354-55.
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As a jurisdictional requirement flowing from the standing doctrine, the prisoner

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must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to

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contemplated or existing litigation, such as the inability to meet a filing deadline or present a

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non-frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007).

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Delays in providing legal materials or assistance which result in prejudice are “not of

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constitutional significance” if the delay is reasonably related to legitimate penological purposes.

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Lewis, 518 U.S. at 362.

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C.

EIGHTH AMENDMENT (FORCE/SAFETY/MEDICAL):

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of

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dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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When prison officials stand accused of using excessive force, the core judicial

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inquiry is “whether 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 v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as
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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

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is applied to excessive force claims because prison officials generally do not have time to reflect

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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

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U.S. at 320-21. In determining whether force was excessive, the court considers the following

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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

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between the need for force and the amount of force used; (4) the nature of the threat reasonably

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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

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because the use of force relates to the prison’s legitimate penological interest in maintaining

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security and order, the court must be deferential to the conduct of prison officials. See Whitley,

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475 U.S. at 321-22.

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Similarly, prison officials have a duty to take reasonable steps to protect inmates

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from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982); Farmer, 511

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U.S. at 833. Liability exists only when two requirements are met: (1) objectively, the prisoner

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was incarcerated under conditions presenting a substantial risk of serious harm; and (2)

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subjectively, prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837. The

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very obviousness of the risk may suffice to establish the knowledge element. See Wallis v.

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Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if

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evidence is presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844.

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The knowledge element does not require that the plaintiff prove that prison officials know for a

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certainty that the inmate’s safety is in danger, but it requires proof of more than a mere suspicion

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of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the plaintiff must

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show that prison officials disregarded a risk. Thus, where prison officials actually knew of a

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substantial risk, they are not liable if they took reasonable steps to respond to the risk, even if
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harm ultimately was not averted. See Farmer, 511 U.S. at 844.
In addition, deliberate indifference to a prisoner’s serious illness or injury, or risks

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of serious injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429

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U.S. at 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and

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mental health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or

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illness is sufficiently serious if the failure to treat a prisoner’s condition could result in further

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significant injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.

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1994). Factors indicating seriousness are: (1) whether a reasonable doctor would think that the

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condition is worthy of comment; (2) whether the condition significantly impacts the prisoner’s

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daily activities; and (3) whether the condition is chronic and accompanied by substantial pain.

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See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,
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90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff’s allegations raise several possible Eighth Amendment claims. Plaintiff

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alleges unsafe living conditions, excessive use of force (including sexual assault), and

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insufficient medical care. Although these allegations all may arise under the Eighth Amendment,

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they are not necessarily sufficiently related to be included in one action where they are against

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separate individuals.

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III. CONCLUSION
Plaintiff cannot proceed in this action on his complaint as currently written. There
are too many unrelated claims to meet the pleading requirements of the Federal Rules of Civil

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Procedure. Plaintiff must choose which claims to proceed on in this action. He may then choose

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whether to file a separate action raising other claims. Plaintiff is cautioned that if he files an

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amended complaint again raising unrelated claims against different individuals, his complaint

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may be dismissed for failure to follow court rules and orders. See Local Rule 110.

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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Plaintiff shall file a amended complaint within 30 days of the date of

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service of this order.

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DATED: November 15, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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