Bontemps v. Harper

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 3/24/14 ORDERING that 5 Motion to Proceed IFP is GRANTED; Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Plaintiff,

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No. 2:13-cv-00506 DAD P

v.

ORDER

HARPER,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and the Americans with Disabilities Act. This proceeding was referred to this court by

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Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has consented to Magistrate Judge

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jurisdiction over this action pursuant to 28 U.S.C. § 636(c). (See ECF No. 4.)

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

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and has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

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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 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect

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twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and

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forward it to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00,

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until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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II. Plaintiff’s Complaint

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Plaintiff names in his complaint only one defendant, correctional Sergeant Harper who is
employed at High Desert State Prison. In its entirety, plaintiff’s complaint alleges as follows1:

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On June 2, 2012 I was placed in administrative segregation due to
staff use of force on 6-25-12. I was given a chrono stating
comprehensive accommodation chrono for my AirCast walker
400-1-P-large walking boot and sock and air pump to pump up the
airbags in the AirCast. Sergeant Harper took my sock and my air
pump until I left administrative segregation Oct. 17-2012[.] While
I was in administrative segregation I fell several times because I
couldn’t [illegible] my AirCast. Since I’ve been in H.D.S.P. I’ve
had two AirCast[.] Sergeant was not aware that I had another pump
when I left administrative segregation.

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(ECF No. 1 at 3.) Plaintiff seeks $400,000 as compensatory and punitive damages. (Id.)

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III. Screening Requirement

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 (9th

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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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Plaintiff’s complaint is handwritten and portions are illegible.
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘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

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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 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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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. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

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resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
The allegations of plaintiff’s complaint are so vague and conclusory that the court is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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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 plaintiff leave to file an

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amended complaint and will provide plaintiff with the following legal standards governing the

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claims that plaintiff appears to be attempting to allege.

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IV. Eighth Amendment Claim

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To the extent that plaintiff is proceeding with an Eighth Amendment claim challenging the

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conditions of his confinement, he is advised of the following legal requirements governing such a

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claim.

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It is well established that a prison official’s deliberate indifference to a substantial risk of
serious harm to an inmate violates the cruel and unusual punishment clause of the Eighth
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Amendment. Farmer v. Brennan, 511 U.S. 825, 828-29 (1994); Helling v. McKinney, 509 U.S.

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25, 31-32 (1993); Wilson v. Seiter, 501 U.S. 294, 302 (1991); Estelle v. Gamble, 429 U.S. 97,

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104 (1976). “It is not, however, every injury suffered by one prisoner at the hands of another that

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translates into constitutional liability for prison officials responsible for the victim’s safety.”

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Farmer, 511 U.S. at 834. There are both objective and a subjective requirements in attempting to

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state a cognizable claim under the Eighth Amendment. First, for the objective requirement, “the

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inmate must show that he is incarcerated under conditions posing a substantial risk of serious

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harm.” Id. Second, as to the subjective requirement, the prison official must have a sufficiently

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culpable state of mind. See id. Here the required state of mind is one of deliberate indifference.

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See id. A prison official who knows of and disregards an excessive risk to the inmate’s health or

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safety demonstrates deliberate indifference. See id. at 837. Thus, “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw that inference.” Id. However, an official that knows of a

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substantial risk to an inmate’s health or safety but acts reasonably under the circumstances will

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not be held liable under the cruel and unusual punishment clause, even if the threatened harm

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results. See id. at 843.

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Therefore, in any amended complaint he elects to file plaintiff must allege facts

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demonstrating that he faced a substantial risk of serious harm, that the named defendant knew of

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and disregarded the risk of harm to plaintiff, and that the actions of the named defendant in

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response to that risk of harm were not reasonable.

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V. Americans with Disabilities Act (ADA) Claim

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Insofar as plaintiff is attempting to present a claim pursuant to the ADA, he is advised that
Title II of the ADA provides that:
no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or
be subject to discrimination by such entity.

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To establish a violation of the ADA, a plaintiff must allege and show that: (1) he or she is a

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qualified individual with a disability; (2) he or she was excluded from participation in or
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otherwise discriminated against with regard to a public entity’s services, programs, or activities;

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and (3) such exclusion or discrimination was by reason of his or her disability. See Simmons v.

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Navajo County, 609 F.3d 1011, 1021 (9th Cir. 2010); Lovell v. Chandler, 303 F.3d 1039, 1052

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(9th Cir. 2002). The proper defendant with respect to an alleged violation of the ADA is the

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public entity or correctional facility. See Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th Cir.

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1997).

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Here, plaintiff has not named a proper defendant with respect to an ADA claim nor has he

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sought a proper remedy with respect to such a claim. In addition, plaintiff has not alleged that he

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has been excluded from participation in, or otherwise discriminated against with regard to, a

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public entity’s services, programs, or activities due to a disability.

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VI. Amended Complaint

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In any amended complaint he elects to file, plaintiff must allege facts demonstrating how

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the conditions complained of resulted in a deprivation of plaintiff’s federal constitutional or

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

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must allege in specific terms how each named defendant was involved in the deprivation of

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

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

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

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

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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

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amended complaint complete. Local Rule 220 requires that an amended complaint be complete

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in itself without reference to any prior pleading. This is because, as a general rule, an amended

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

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Once plaintiff files an amended complaint, the original pleading no longer serves any function in

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

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involvement of defendant must be sufficiently alleged.
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VII. Conclusion

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

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1. Plaintiff’s April 18, 2013 request for leave to proceed in forma pauperis (ECF No. 5) is

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

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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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 amended

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

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

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assigned to this case and must be labeled “Amended Complaint”; plaintiff must use the form

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complaint provided by the Clerk of the Court; failure to file an amended complaint in accordance

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with this order will result in this action being dismissed without prejudice.

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5. The Clerk of the Court is directed to provide plaintiff with the court's form complaint

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for a § 1983 action.

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Dated: March 24, 2014

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DAD:4
bot506.14

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