Capogreco v. High Desert State Prison et al

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/17/12 ORDERING that 7 Motion for a collection order; The complaint is DISMISSED with leave to amend within 30 days.(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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KENNETH E. CAPOGRECO,
Plaintiff,

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No. CIV S-11-3218 EFB P

vs.

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HIGH DESERT STATE PRISON, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983.1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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On January 26, 2012, plaintiff paid the filing fee. Accordingly, his April 11, 2012
motion for the court to direct prison officials to process his trust account withdrawal request, is
denied as moot.
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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II.

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Screening Order
The court has reviewed plaintiff’s complaint pursuant to § 1915A. The court finds the

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allegations in plaintiff’s complaint so vague and conclusory that it is unable to determine

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whether the current action is frivolous or fails to state a claim for relief. The complaint does not

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contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal

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Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements

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of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th
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Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which

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defendants engaged in that support plaintiff’s claim. Id. Because plaintiff has failed to comply

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with the requirements of Fed. R. Civ. P. 8(a)(2), and otherwise fails to state a claim, as discussed

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below, the complaint must be dismissed.

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A.

Law Library

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The complaint alleges that plaintiff’s right of access to the courts has been violated

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because High Desert State Prison has an inadequate law library. The complaint also alleges that

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defendant McDonald, the warden, is responsible for the inadequate library because he approves

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budgets and the allocation of resources. The complaint also alleges defendant Kraft is

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responsible for the inadequate library because it is his responsibility to properly equip the

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library, and that defendant Plainer is somehow responsible as well.

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Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S.

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817, 828 (1977). Prisoners also have a right “to litigate claims challenging their sentences or the

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conditions of their confinement to conclusion without active interference by prison officials.”

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Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). An inmate alleging a violation of this

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right must show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51 (1996).

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That is, plaintiff must allege that the deprivation actually injured his litigation efforts, in that the

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defendant hindered his efforts to bring, or caused him to lose, an actionable claim challenging

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his criminal sentence or conditions of confinement. See id. at 351; Christopher v. Harbury, 536

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U.S. 403, 412-15 (2002). Inmates do not have “an abstract, freestanding right to a law library or

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legal assistance,” and thus, “cannot establish relevant actual injury simply by establishing that

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[the] prison’s law library or legal assistance program is subpar in some theoretical sense.”

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Lewis, 518 U.S. at 351. Plaintiff fails to plead facts sufficient to state a claim that any defendant

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denied him access to the courts.

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Moreover, an individual defendant is not liable on a civil rights claim unless the facts
establish the defendant’s personal involvement in the constitutional deprivation or a causal
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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). Plaintiff fails to plead facts sufficient to demonstrate that any defendant was

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personally involved in denying plaintiff access to the courts.

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B.

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The complaint alleges generally that inmates are not provided with enough showers. The

Showers

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Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim.

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Hudson v. McMillian, 503 U.S. 1, 9 (1992). A prison official violates the Eighth Amendment’s

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proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal

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civilized measure of life’s necessities with a “sufficiently culpable state of mind.” Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). To succeed on such an Eighth Amendment claim, a prisoner

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must show that (1) the defendant prison official’s conduct deprived him or her of the minimal

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civilized measure of life’s necessities and (2) that the defendant acted with deliberate

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indifference to the prisoner’s health or safety. Id. at 834. To show deliberate indifference, the

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prisoner must establish that the defendant knew of and disregarded an excessive risk to inmate

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health or safety; “the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

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837. A prison official may thus be free from liability if he or she did not know of the risk or took

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reasonable action in response to the risk. Id. at 844. To determine whether an Eighth

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Amendment violation has occurred, a court should consider the circumstances, nature and

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duration of a deprivation of these necessities. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (referring to necessities such as adequate shelter, food, clothing, sanitation, medical care,

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and personal safety). Here, plaintiff’s vague and conclusory allegations fail to set forth sufficient

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factual matter to state a cognizable Eighth Amendment claim.
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C.

Exercise

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The complaint alleges that since February 2011, plaintiff has received less than five hours

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of exercise a week. Exercise is one of the basic human necessities protected by the Eighth

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Amendment, because “some form of regular outdoor exercise is extremely important to the

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psychological and physical well being” of inmates. Spain v. Procunier, 600 F.2d 189, 199 (9th

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Cir. 1979); see also LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1457 (9th Cir. 1993).

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“[T]emporary denials of outdoor exercise must have adverse medical effects to meet the Eighth

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Amendment test, while long-term deprivations are substantial regardless of effects.” Lopez v.

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Smith, 203 F.3d 1122, 1133 n.15 (9th Cir. 2000). Plaintiff does not allege facts showing that the

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vague restrictions on exercise that he complains of are sufficiently serious to form the basis of an

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Eighth Amendment violation. Nor does he sufficiently allege that any defendant acted with

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deliberate indifference to a substantial risk of harm to his health or safety through the denial of

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adequate exercise.

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D.

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The complaint alleges that administrative appeals are improperly screened out by the

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appeals coordinator. To the extent plaintiff intends to impose liability against any defendant

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based on his or her handling of plaintiff’s administrative appeals, plaintiff is hereby informed

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that there are no constitutional requirements regarding how a grievance system is operated. See

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of a

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liberty interest in the processing of his appeals does not violate due process because prisoners

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lack a separate constitutional entitlement to a specific prison grievance system). Thus, plaintiff

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may not impose liability on a defendant simply he or she played a role in processing plaintiff’s

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inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (an administrative

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“grievance procedure is a procedural right only, it does not confer any substantive right upon the

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inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the fourteenth amendment. . . . Thus, defendants’ failure to process

Administrative Appeals

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any of Buckley’s grievances, without more, is not actionable under section 1983.” (internal

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quotations omitted)).

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E.

Proper Defendants

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Plaintiff names High Desert State Prison as a defendant. He is hereby informed that the

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prison, itself, is not a proper defendant. In order to state a claim under § 1983, a plaintiff must

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allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42,

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48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff may not sue any

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official on the theory that the official is liable for the unconstitutional conduct of his or her

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subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Because respondeat superior

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liability is inapplicable to § 1983 suits, “a plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has violated the Constitution.” Id. It is

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plaintiff’s responsibility to allege facts to state a plausible claim for relief. Iqbal, 129 S. Ct. at

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1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Claims for damages against

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the state, its agencies or its officers for actions performed in their official capacities are barred

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under the Eleventh Amendment, unless the state waives its immunity. Kentucky v. Graham, 473

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U.S. 159, 169, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); see also Will v. Michigan Dep’t of State

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Police, 491 U.S. 58, 71 (1989) (neither a state nor its officials acting in their official capacities

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are persons under § 1983). Section 1983 does not abrogate the states’ Eleventh Amendment

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immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344-45 (1979). Thus, any claim for

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damages against a state entity, such as High Desert State Prison, is barred. Should plaintiff elect

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to file an amended complaint, he should not name the prison as a defendant.

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F.

Improper Joinder

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The above allegations appear to improperly join defendants and claims that are unrelated.

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Federal Rule of Civil Procedure 18(a) allows a plaintiff to assert multiple claims when they are

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against a single defendant. Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join
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multiple defendants to a lawsuit where the right to relief arises out of the same “transaction,

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occurrence, or series of transactions or occurrences” and “any question of law or fact common to

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all defendants will arise in the action.” Unrelated claims against different defendants must

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therefore be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). This rule is intended “not only to prevent the sort of morass [a multiple claim, multiple

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defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees– for the

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Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any

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prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” Id.

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Because the complaint appears to allege unrelated claims against different defendants, any

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amended complaint must correct this defect.

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III.

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Leave to Amend
Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant, as well as sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended

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complaint must cure the deficiencies identified above and also adhere to the following

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requirements:

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Any amended complaint must be complete in itself without reference to any prior

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pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading is superseded. In an amended

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complaint, plaintiff must include a complete list of all intended defendants. Plaintiff must also

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identify as a defendant only persons who personally participated in a substantial way in

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depriving him of a federal constitutional right.

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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IV.

Conclusion

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1. Plaintiff’s April 11, 2012 motion for a collection order (Dckt. No. 7) is denied.

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2. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in a recommendation that this action be

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dismissed for failure to state a claim.

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Dated: April 17, 2012.

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