Ware v. McDonald et al

Filing 39

ORDER signed by Magistrate Judge Kendall J. Newman on 04/09/13 ordering plaintiff's second amended complaint 23 is dismissed with leave to amend. Within 30 days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit it along with an original and 1 copy of the third amended complaint. The clerk of the court shall send plaintiff the form for filing a civil rights action pursuant to 42 USC 1983. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARTIN WARE,

11
12
13

Plaintiff,
vs.
M. McDONALD, et al.,

14

Defendants.

15
16

No. 2:12-cv-1505 MCE KJN P

ORDER
/

I. Introduction

17

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief

18

pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.

19

This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

20

Plaintiff was directed to notify the court whether he wished to file a third amended complaint, in

21

light of subsequent requests to supplement the pleading, or to proceed on the second amended

22

complaint. (Dkt. No. 28.) Plaintiff elected to proceed on the second amended complaint.

23

II. Screening

24

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

25

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

26

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
1

1

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

2

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

3

28 U.S.C. § 1915A(b)(1),(2).

4

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

5

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

6

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

7

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

8

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

9

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

10

Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

11

2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

12

meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

13

1227.

14

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

15

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

16

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

17

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

18

(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more

19

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

20

allegations sufficient “to raise a right to relief above the speculative level.” Id. However,

21

“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

22

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

23

U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

24

quotations marks omitted). In reviewing a complaint under this standard, the court must accept

25

as true the allegations of the complaint in question, id., and construe the pleading in the light

26

most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
2

1

grounds, Davis v. Scherer, 468 U.S. 183 (1984).

2

Plaintiff’s second amended complaint is 63 pages long, and names 11 defendants.

3

At bottom, however, plaintiff’s claims stem from a decision to house plaintiff with an inmate

4

with whom plaintiff alleges he could not safely be housed, and two incidents of excessive force

5

that plaintiff alleges occurred during his escort to that cell, all of which occurred on June 4, 2011.

6

Plaintiff alleges seventeen separate causes of action; however, as explained below, plaintiff’s

7

allegations raise potentially cognizable civil rights claims only as to the following causes of

8

action: alleged deliberate indifference to plaintiff’s safety needs,1 in violation of the Eighth

9

Amendment, see Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (prison officials have a duty to

10

protect prisoners from violence at the hands of other prisoners); and alleged excessive force in

11

violation of the Eighth Amendment.

12
13

As plaintiff was previously informed, the Civil Rights Act under which this action
was filed provides as follows:

14

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.

15
16
17

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

18

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

19

Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) (“Congress did not intend

20

§ 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976)

21
22
23
24
25
26

1

Plaintiff claims his First Amendment rights were violated, and includes the phrase
“deliberate retaliatory intent” in his failure to protect claim. “Within the prison context, a viable
claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state
actor took some adverse action against an inmate (2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and
(5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Here, however, plaintiff does not allege
that he was engaged in protected conduct, and the factual allegations do not support a claim
based on retaliation or the First Amendment.
3

1

(no affirmative link between the incidents of police misconduct and the adoption of any plan or

2

policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’

3

another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

4

affirmative act, participates in another's affirmative acts or omits to perform an act which he is

5

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

6

Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

7

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

8

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

9

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

10

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

11

(9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v.

12

Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where

13

there is no evidence of personal participation). Vague and conclusory allegations concerning the

14

involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board

15

of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of

16

personal participation is insufficient).

17

Plaintiff includes no charging allegations as to Warden McDonald, and alleges no

18

facts connecting defendant McDonald with the incidents at issue here. Similarly, plaintiff

19

includes no charging allegations as to defendant Clark, who is an appeals coordinator.2 Plaintiff

20
21
22
23
24
25
26

2

Moreover, prisoners have no stand-alone due process rights related to the administrative
grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling
inmates to a specific grievance process). Put another way, prison officials are not required under
federal law to process inmate grievances in a specific way or to respond to them in a favorable
manner. Because there is no right to any particular grievance process, plaintiff cannot state a
cognizable civil rights claim for a violation of his due process rights based on allegations that
prison officials ignored or failed to properly process grievances. See, e.g., Wright v. Shannon,
2010 WL 445203 at *5 (E.D. Cal. Feb.2, 2010) (plaintiff's allegations that prison officials denied
or ignored his inmate appeals failed to state a cognizable claim under the First Amendment);
Walker v. Vazquez, 2009 WL 5088788 at *6-7 (E.D. Cal. Dec.17, 2009) (plaintiff's allegations
4

1

should not renew his claims as to defendants McDonald and Clark in any third amended

2

complaint.

3

Plaintiff fails to state a cognizable claim as to defendant P. Fackrell. Plaintiff

4

alleges defendant P. Fackrell interviewed plaintiff at the infirmary after the last use of force

5

incident. However, as plaintiff was informed in this court’s prior order, none of the allegations

6

as to defendant P. Fackrell state a cognizable civil rights claim. (Dkt. No. 16 at 7.) Plaintiff

7

should not renew his claim as to defendant P. Fackrell in any third amended complaint.

8

In addition, plaintiff’s reliance on the Fourteenth Amendment in this context is

9

unavailing. The Fourteenth Amendment offers plaintiff no greater protection than the Eighth

10

Amendment. Whitley v. Albers, 475 U.S. 312 (1986) (in excessive force case, Eighth

11

Amendment serves as the primary source of protection); Murphy v. Dowd, 975 F.2d 435 (9th

12

Cir. 1992) (prisoner’s Fourteenth Amendment claim concerning conditions of confinement

13

subsumed by Eighth Amendment claim).

14

Moreover, mere verbal abuse and threats do not violate the Eighth Amendment

15

proscription against cruel and unusual punishment. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

16

1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

17

Finally, plaintiff alleges that he suffered the intentional infliction of emotional

18

distress, in violation of the Eighth and Fourteenth Amendments, based on defendants’ alleged

19

failure to do a victim referral with the district attorney to investigate plaintiff’s claims concerning

20

the cell move and his subsequent injuries allegedly sustained during the subsequent two escorts.

21

(Dkt. No. 23 at 48.)

22

////

23
24
25
26

that prison officials failed to timely process his inmate appeals failed to a state cognizable under
the Fourteenth Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20,
2009) (plaintiff's allegations that prison officials screened out his inmate appeals without any
basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2009 WL 3789597 at *6
(E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his
administrative claims.”).
5

1

First, the intentional infliction of emotional distress is a state law claim, not a

2

constitutional violation. Second, plaintiff cites to no statute that required defendants to complete

3

a victim referral for plaintiff, or that grant plaintiff a private right of action as to such a claim.

4

Indeed, the decision to charge an individual with criminal violations is solely within the

5

discretion of the district attorney. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]

6

private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of

7

another.”); Diamond v. Charles, 476 U.S. 54, 64 (1986) (noting that a victim of a crime does not

8

have a “judicially cognizable interest” in prosecuting an alleged criminal); Satler v. Johnson, 857

9

F.2d 224, 227 (4th Cir.1988) (neither member of public at large nor victim has right to have

10

another criminally prosecuted). The California Code of Regulations is designed to guide prison

11

staff; the regulations do not provide prisoners with rights to sue. See Sandin v. Conner, 515 U.S.

12

472, 481-82 (1995) (prison regulations “guide correctional officials in the administration of a

13

prison” and do not “confer rights on inmates”).

14
15

However, as stated above, it appears plaintiff may be able to state a cognizable
civil rights claim based on alleged violations of the Eighth Amendment, as set forth below:

16

A. Alleged Failure to Protect

17

The Eighth Amendment requires that prison officials take reasonable measures for

18

the safety of prisoners. Id. at 832. In particular, prison officials have a duty to protect prisoners

19

from violence at the hands of other prisoners. Id. at 833. An Eighth Amendment failure to

20

protect claim has two elements: (1) the condition complained of must be shown to present a

21

substantial risk of serious harm, and (2) the defendant must be shown to have possessed a

22

sufficiently culpable state of mind. Id. at 834.

23

In prison conditions cases, the necessary state of mind to establish an Eighth

24

Amendment violation is one of “deliberate indifference.” Id. A prison official cannot be held

25

liable under the Eighth Amendment for denying an inmate humane conditions of confinement

26

unless the standard for criminal recklessness is met, i.e., the official must know of and disregard
6

1

an excessive risk to inmate health or safety. Id. at 837. The official must be aware of facts from

2

which the inference could be drawn that a substantial risk of serious harm exists, and he or she

3

must also draw the inference. Id. A detention official's knowledge of substantial risk “is a

4

question of fact subject to demonstration in the usual ways, including inference from

5

circumstantial evidence. . . .” Id. at 842 (citations omitted)

6

Neither negligence nor gross negligence constitutes deliberate indifference. Id. at

7

835-36 & n.4; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (deliberate indifference

8

requires more than negligence). “It is obduracy and wantonness, not inadvertence or error in

9

good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments

10
11

Clause.” Whitley, 475 U.S. at 319.
Thus, plaintiff should only name as defendants those prison officials who knew

12

plaintiff was at a substantial risk of serious harm if housed with inmate Beltran, yet assigned

13

plaintiff to cell with Beltran anyway.

14

B. Alleged Excessive Force

15

The analysis of an excessive force claim brought pursuant to Section 1983 begins

16

with “identifying the specific constitutional right allegedly infringed by the challenged

17

application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment's

18

prohibition on cruel and unusual punishment applies to incarcerated individuals. Whitley, 475

19

U.S. at 318. To state an Eighth Amendment claim, a plaintiff must allege that the use of force

20

was the “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th

21

Cir. 2001). The malicious and sadistic use of force to cause harm always violates contemporary

22

standards of decency, regardless of whether or not significant injury is evident. Hudson v.

23

McMillian, 503 U.S. 1, 9 (1992); see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002)

24

(Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis

25

injuries). However, not “every malevolent touch by a prison guard gives rise to a federal cause

26

of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and unusual
7

1

punishments necessarily excludes from constitutional recognition de minimis uses of physical

2

force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id.

3

at 9-10 (internal quotations marks and citations omitted).

4

Whether force used by prison officials was excessive is determined by inquiring if

5

the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

6

sadistically to cause harm.” Hudson, 503 U.S. at 6-7. Courts evaluate the need for application of

7

force; the relationship between that need and the amount of force applied; the extent of the injury

8

inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by

9

prison officials; and any efforts made to temper the severity of the response. See Whitley, 475

10

U.S. at 321. The absence of significant injury alone is not dispositive of a claim of excessive

11

force. See Wilkens v. Gaddy, 130 S. Ct. 1175, 1176-77 (2010) (dismissal based on

12

determination that injuries were de minimis, without more, requires reversal).

13

Therefore, to state a cognizable claim of excessive force, plaintiff must identify

14

the specific individual who used force against plaintiff, and supply factual allegations that

15

demonstrate the force used was excessive. Plaintiff should not include individuals who were not

16

present during the use of force, or who did not participate in the use of force. Plaintiff will be

17

granted leave to file a third amended complaint to specifically set forth the facts supporting each

18

element of Hudson, identifying the injuries plaintiff claims he sustained as a result of the alleged

19

use of excessive force, and identifying the claim as a violation of plaintiff’s Eighth Amendment

20

rights. For example, it appears plaintiff may be able to state a potentially cognizable excessive

21

use of force claim as to defendants Holt, Green, Giessner, and Glover; thus, plaintiff should

22

include his factual allegations as to defendants Holt, Green, Giessner, and Glover in the third

23

amended complaint. However, plaintiff is cautioned that he does not need to explain all the

24

details leading up to the use of force. Plaintiff need only allege sufficient facts as to those

25

defendants he claims used excessive force. Moreover, “[n]ot every push or shove . . . violates a

26

prisoner’s constitutional rights.” Hudson, 503 U.S. at 9-10 (internal quotation and citation
8

1

omitted).

2

III. Request for Injunctive Relief

3

Within the second amended complaint, plaintiff refers to a request for injunctive

4

relief, but did not include such a request in the prayer for relief. Plaintiff asks the court to impose

5

a permanent restraining order on defendants employed at High Desert State Prison in connection

6

with plaintiff’s efforts to exhaust his administrative remedies. (Dkt. No. 23 at 17.) However,

7

plaintiff is now housed at Kern Valley State Prison in Delano, California.

8
9

When a prisoner is transferred from a prison, claims for injunctive relief arising
from conditions at the former prison become moot. See Nelson v. Heiss, 271 F.3d 891, 897 (9th

10

Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995)). Plaintiff does not

11

allege that there is a reasonable possibility of returning to High Desert State Prison, so his prayer

12

for injunctive relief does not fall within the “capable of repetition yet evading review” exception

13

to the mootness doctrine. See Dilley, 64 F.3d at 1368. Finally, plaintiff does not allege that

14

defendants have any authority over plaintiff's housing or other conditions of plaintiff's

15

confinement at Kern Valley State Prison. This court is unable to issue an order against

16

individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine

17

Research, Inc., 395 U.S. 100 (1969). Therefore, plaintiff should not renew his claim for

18

injunctive relief in any third amended complaint.

19

IV. Exhibits

20

Plaintiff has submitted various exhibits with his original complaint, and

21

subsequent amended complaints. (Dkt. Nos. 1 at 31-72; 9 at 27-40; & 23 at 50-62.) Some of

22

these documents pertain to plaintiff’s efforts to exhaust his administrative remedies and are not

23

relevant to plaintiff’s underlying claims. Thus, rather than re-append these exhibits to any third

24

amended complaint, the court will retain the exhibits pending receipt of plaintiff’s third amended

25

complaint. Plaintiff may refer to these exhibits.

26

////
9

1
2

V. Dismissal With Leave to Amend
Accordingly, plaintiff’s second amended complaint does not contain a short and

3

plain statement as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure, and is

4

dismissed with leave to amend. Plaintiff must provide a short, plain statement that gives the

5

defendant fair notice of what the plaintiff's claim is, and the facts upon which his claim rests.

6

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley, 355 U.S. at 47. This

7

means that plaintiff must briefly describe who the defendant is (job title is sufficient), what the

8

defendant did, and how such actions violated plaintiff's rights. Each defendant is only liable for

9

the injuries that his own actions cause, so the third amended complaint must be limited

10

accordingly. Plaintiff is advised that he need not cite legal authorities. “Rule 8(a) is the starting

11

point of a simplified pleading system, which was adopted to focus litigation on the merits of a

12

claim.” See Swierkiewicz, 534 U.S. at 514. Accordingly, any third amended complaint shall

13

not exceed twenty pages.

14

Plaintiff is not required to address the issue of exhaustion of administrative

15

remedies, other than to check the appropriate boxes on the form complaint. In his second

16

amended complaint, plaintiff included four handwritten pages addressing his efforts to exhaust.

17

Plaintiff shall not include these allegations in the third amended complaint.

18

With the exception of his exhibits, plaintiff is informed that the court cannot refer

19

to a prior pleading in order to make plaintiff’s third amended complaint complete. Local Rule

20

220 requires that an amended complaint be complete in itself without reference to any prior

21

pleading. This requirement exists because, as a general rule, an amended complaint supersedes

22

the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a

23

third amended complaint, the original pleading no longer serves any function in the case.

24

Therefore, in the third amended complaint, as in an original complaint, each claim and the

25

involvement of each defendant must be sufficiently alleged. However, as noted above, the court

26

will retain plaintiff’s exhibits for future reference.
10

1

In accordance with the above, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s second amended complaint (dkt. no. 23) is dismissed with leave to

3

amend.

4
5

2. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Amendment and submit the following documents to the court:

6

a. The completed Notice of Amendment; and

7

b. An original and one copy of the Third Amended Complaint.

8

Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act,

9

the Federal Rules of Civil Procedure, and the Local Rules of Practice. The third amended

10

complaint must also bear the docket number assigned to this case and must be labeled “Third

11

Amended Complaint.” The third amended complaint shall not exceed twenty pages in

12

length. Failure to file a third amended complaint in accordance with this order will result in a

13

recommendation that this action be dismissed.

14

3. The Clerk of Court shall send plaintiff the form for filing a civil rights action

15

pursuant to 42 U.S.C. § 1983.

16

DATED: April 9, 2013

17
18

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

19
20

ware1505.14b

21
22
23
24
25
26
11

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARTIN WARE,

11
12
13

Plaintiff,
vs.
M. McDONALD, et al.,

14
15

___________________________/
Plaintiff hereby submits the following document in compliance with the court's
order filed

18
19

NOTICE OF AMENDMENT

Defendants.

16
17

No. 2:12-cv-1505 KJN P

:
______________

Third Amended Complaint that does not exceed
20 pages in length

DATED:

20
21
Plaintiff
22
23
24
25
26