Thompson v. Rosario, et al

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 7/5/12 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action.(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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MARIO THOMPSON,

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Plaintiff,

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No. 2:12-cv-0776 KJM DAD P

vs.
D. ROSARIO et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

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This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule

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302 and 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee

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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly
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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

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U.S.C. § 1915(b)(2).

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SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an 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 the prisoner has raised

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the

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actions of their employees under a theory of respondeat superior and, therefore, when a named

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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of official personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S COMPLAINT
In the present case, plaintiff has identified Officer Rosario, Sergeant Primm, and

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Lieutenant Sanchez as the defendants. Plaintiff alleges that, on or about November 29, 2009,

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defendant Rosario used unnecessary force against him when he pushed plaintiff into his cell after

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removing plaintiff’s mechanical restraints. According to plaintiff, both defendants Primm and
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Sanchez subsequently became aware of defendant Rosario’s alleged use of force against plaintiff,

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and defendant Primm threatened to send plaintiff to “ad-seg” if he pursued an excessive force

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complaint about the incident. According to plaintiff, defendant Rosario’s use of force resulted in

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plaintiff injuring his back. Plaintiff claims that the defendants have violated his rights under the

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Eighth Amendment. In terms of relief, plaintiff requests monetary damages. (Compl. Attach. at

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1-7.)

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DISCUSSION
The allegations in plaintiff’s complaint are so vague and conclusory that the court
is unable to determine whether the current action is frivolous or fails to state a claim for relief.

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The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

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the defendants and must allege facts that support the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege

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with at least some degree of particularity overt acts which defendants engaged in that support his

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claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an

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amended complaint.

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If plaintiff chooses to file an amended complaint, he must allege facts

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demonstrating how the conditions complained of resulted in a deprivation of his federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

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amended complaint must allege in specific terms how each named defendant was involved in the

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deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673
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F.2d 266, 268 (9th Cir. 1982).
If plaintiff wishes to proceed on an excessive use force claim against defendant

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Rosario, he is advised that the Eighth Amendment prohibits the infliction of “cruel and unusual

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punishments.” U.S. Const. amend. VIII. The “unnecessary and wanton infliction of pain”

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constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley

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v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977);

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Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel

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and unusual punishment, as “[i]t is obduracy and wantonness, not inadvertence or error in good

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faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.”

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Whitley, 475 U.S. at 319.
What is needed to show unnecessary and wanton infliction of pain “varies

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according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S.

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1, 5 (1992) (citing Whitley, 475 U.S. at 320). To prevail on an Eighth Amendment claim the

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plaintiff must allege and show that objectively he suffered a “sufficiently serious” deprivation.

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Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The plaintiff must also

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show that subjectively each defendant had a culpable state of mind in allowing or causing the

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plaintiff’s deprivation to occur. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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It is well established that “whenever prison officials stand accused of using

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excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core

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judicial inquiry is that set out in Whitley, i.e., whether force was applied in a good-faith effort to

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maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S.

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at 6-7. However, a prisoner is not required to allege and show a “significant injury” to establish

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that he suffered a sufficiently serious constitutional deprivation. Hudson, 503 U.S. at 9-10.

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In any amended complaint plaintiff elects to file, he will need to elaborate on the

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circumstances surrounding his confrontation with defendant Rosario and explain why and in

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what manner he believes the defendant used force maliciously and sadistically to cause harm and
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violated his rights under the Eighth Amendment in light of the legal standard discussed above. In

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addition, plaintiff will need to explain why he has named defendants Primm and Sanchez as

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defendants in this action. Even if these defendants became aware of defendant Rosario’s alleged

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use of excessive force against plaintiff, their awareness of the incident in and of itself does rise to

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the level of a separate Eighth Amendment violation on their part. In this regard, in any amended

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complaint plaintiff elects to file, he may choose to name defendant Rosario as the sole defendant,

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or he must clarify how it is that defendants Primm and Sanchez violated his federal or

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constitutional rights.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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The fee shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned to this case and must be labeled “Amended Complaint”; failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action
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be dismissed without prejudice.

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5. The Clerk of the Court is directed to send plaintiff the court’s form for filing a

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civil rights action.

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DATED: July 5, 2012.

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DAD:9
thom0776.14a

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