Stribling v. Defazio et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/8/2013 GRANTING plaintiff's 5 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR notice; and the complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON STRIBLING,

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Plaintiff,
vs.

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No. 2:12-cv-2729 JAM EFB P

J. DEFAZIO, et al.,

ORDER GRANTING IFP AND SCREENING
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

Defendants.

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Plaintiff is a state inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in

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forma pauperis.

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I.

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Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

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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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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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short

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and 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 Atl. Corp. v.

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

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129

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S. Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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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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III.

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Screening Order
The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds it must be

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dismissed with leave to amend. First, plaintiff appears to have improperly joined unrelated

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claims and defendants in a single lawsuit. The complaint references discrete events involving

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one or more of the approximately 24 named defendants. See Dckt. No. 1 (including allegations

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regarding: (1) excessive force by defendant Bartolomedi on January 27, 2010 and wrongful

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placement in administrative segregation; (2) an August 11, 2010 falsified battery on a peace

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officer charge to retain plaintiff in administrative segregation; (3) an August 30, 2010 physical

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assault, false battery charge, and Security Housing Unit (“SHU”) term; (4) a November 22, 2010

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falsified charge for refusing to accept a cellmate; (5) an alleged instance of deliberate

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indifference on March 2, 2011; (6) alleged denial of yard time from March 4, 2011 to May 5,

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2011; (7) a March 5, 2011 denial of prescheduled visit; (8) a wrongfully assessed SHU term on

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May 4, 2011; (9) a July 28, 2011 use of a chemical spray and denial of medical care; and (10) a

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July 29, 2011 unnecessary force incident). While plaintiff’s intended claims for relief are not

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clear, it is obvious that the above allegations may not be properly joined together as claims in

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this action, as they involve discrete events that do not arise out the same occurrence and involve

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a common question of law or fact.1 See Fed. R. Civ. P. 20(a)(2). Because the complaint appears

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“The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim
. . . may join, [] as independent or as alternate claims, as many claims . . . as the party has against
an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims
against different defendants belong in different suits, not only to prevent the sort of morass [a
multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the
required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits
or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C.
§ 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
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to allege unrelated claims against different defendants, plaintiff must file an amended complaint

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correcting this defect. Plaintiff may not change the nature of this suit by alleging new, unrelated

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claims in an amended complaint. George, 507 F.3d at 607 (no “buckshot” complaints).

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Second, plaintiff’s allegations regarding an alleged use of excessive force by defendant

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Bartolomedi on January 27, 2010 are duplicative of those currently being litigated in Stribling v.

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Bortolemedi, No. 2:10-cv-3247 CKD.2 See 28 U.S.C. § 1915A(b)(1); see also Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (A complaint that “merely repeats pending or

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previously litigated claims” may be dismissed as frivolous under the authority of 28 U.S.C.

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§ 1915). Plaintiff must pursue his excessive force allegations against Bartolomedi in the action

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he initially commenced. Those allegations shall not be re-alleged in any amended complaint.

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Third, the allegations in the complaint are simply too vague and conclusory to state a

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cognizable claim for relief and violate Rule 8. Although the Federal Rules adopt a flexible

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pleading policy, a complaint must give fair notice and state the elements of the claim plainly and

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

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff's claim. Id. In an amended complaint, plaintiff must identify as a defendant

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only persons who personally participated in a substantial way in depriving him of a federal

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constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects

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another to the deprivation of a constitutional right if he does an act, participates in another’s act

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or omits to perform an act he is legally required to do that causes the alleged deprivation).

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The allegations must be short and plain, simple and direct and describe the relief plaintiff

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seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v.

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County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). A long, rambling pleading,

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including many defendants with unexplained, tenuous or implausible connection to the alleged

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 504 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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constitutional injury or joining a series of unrelated claims against many defendants very likely

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will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing

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plaintiff’s action pursuant to Rule 41 of the Federal Rules of Civil Procedure for violation of

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these instructions.

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The court will, however, grant leave to file an amended complaint.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).
An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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

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Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Rather, a plaintiff must plead that each defendant, through his own individual actions,

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has violated the Constitution. Id. It is plaintiff’s responsibility to allege facts to state a plausible

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claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the

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First Amendment includes communications that are “part of the grievance process.” Brodheim,

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584 F.3d at 1271 n.4.
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To state a claim for violation of the right to procedural due process, plaintiff must allege

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facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and

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(2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.

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2003). State regulations may create a liberty interest in avoiding restrictive conditions of

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confinement if those conditions “present a dramatic departure from the basic conditions of [the

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inmate’s] sentence.” Sandin v. Conner, 515 U.S. 472, 485 (1995).

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In the context of a disciplinary proceeding where a liberty interest is at stake, due process

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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.

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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary

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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to

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call witnesses and present documentary evidence in his defense; and (3) a written statement by

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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454

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(citing Wolff, 418 U.S. at 563-67).

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from 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, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). “ Prison officials have a duty to ensure that prisoners are provided

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adequate shelter, food, clothing, sanitation, medical care, and personal safety. The

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circumstances, nature, and duration of a deprivation of these necessities must be considered in

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determining whether a constitutional violation has occurred. The more basic the need, the

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shorter the time it can be withheld.” Johnson v. Lewis, 217 F.3d 726, 731-732 (9th Cir. 2000)

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(quotations and citations omitted).

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Negligence does not amount to a violation of a federal constitutional or statutory right.

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See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable
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under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to

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inmate health or safety[.]”); see also id. at 835 (“[D]eliberate indifference describes a state of

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mind more blameworthy than negligence.”).

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“[W]henever prison officials stand accused of using excessive physical force in violation

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of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . .: whether force was

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applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

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cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). While malicious and sadistic uses

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of force always violate contemporary standards of decency, not every “malevolent touch” by a

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prison guard is actionable as an Eighth Amendment violation. Id. at 9. “The Eighth

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Amendment’s prohibition of cruel and unusual punishment necessarily excludes from

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constitutional recognition de minimis uses of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotation marks and

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citations omitted). What violates the Eighth Amendment is “the unnecessary and wanton

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infliction of pain,” i.e., infliction of suffering that is “totally without penological justification.”

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Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

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The following factors are relevant to a determination of whether a use of force violated

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the Eighth Amendment: (1) the need for the use of force; (2) the relationship between the need

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for force and the amount used; (3) the extent of injury inflicted; (4) the extent of the threat the

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officers reasonably perceived the plaintiff to pose to staff and inmate safety; and (5) any efforts

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made to temper the severity of the forceful response. Whitley v. Albers, 475 U.S. 312, 321

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(1986).

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat the condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,

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delay or intentional interference with medical treatment or by the way in which medical care is

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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with

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deliberate indifference, a prison official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he

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knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to

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take reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed

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to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. A physician need

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not fail to treat an inmate altogether in order to violate that inmate’s Eighth Amendment rights.

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Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a

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serious medical condition, even if some treatment is prescribed, may constitute deliberate

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indifference in a particular case. Id. It is well established that mere differences of opinion

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concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation.

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981).

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Should plaintiff choose to file an amended complaint, the amended complaint shall

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clearly set forth the claims and allegations against each defendant. It must also allege a

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cognizable legal theory against a proper defendant and 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).

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Additionally, any amended complaint must be written or typed so that it is complete in

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itself without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s request to proceed in forma pauperis is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. 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 may result in a recommendation that this action

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be dismissed for failure to state a claim upon which relief may be granted.

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Dated: May 8, 2013.

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