Ortiz v. California Deparment of Corrections et al

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 8/26/2014 DISMISSING plaintiff's amended complaint; plaintiff has 30 days to file a second amended complaint ; and the Clerk shall send plaintiff the form for filing a civil rights complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSUE ORTIZ,

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Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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No. 2:13-cv-0617 WBS KJN P

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

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s amended complaint is now

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before the court.

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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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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) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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

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

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

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

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

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

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

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

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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

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participation is insufficient).
Here, plaintiff’s amended complaint is labeled both “Criminal Complaint,” and “Civil

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Complaint.” (ECF No. 20 at 2.) Indeed, plaintiff references several criminal statutes and alleges

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that defendants violated these criminal statutes. When a criminal statute is violated, the question

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of whether to prosecute and what criminal charges to file or bring are decisions that generally rest

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in the discretion of the prosecutor, not the Court. United States v. Batchelder, 442 U.S. 114, 124

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(1979); see Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973)

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(prosecution of state officials for alleged violation of inmates' federal civil rights is for discretion

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of U.S. Attorney). Criminal statutes generally do not provide a private cause of action or a basis

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for civil liability. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980) (18 U.S.C.

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§§ 241 and 242 provide no private right of action and cannot form basis for civil suit); Pawelek v.

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Paramount Studios Corp., 571 F.Supp. 1082, 1083 (N.D. Ill. 1983) (no private cause of action

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inherent in federal criminal statutes defining civil rights violations). Plaintiff fails to state any

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cognizable state law claims based on defendants’ alleged violation of California criminal statutes.

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Accordingly, plaintiff’s amended complaint must be dismissed with leave to amend. Plaintiff

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should omit all reference to criminal statutes in any second amended complaint.

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However, it appears that plaintiff may be able to state a cognizable Eighth Amendment

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claim against defendants Martinez and Martinez II.

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It is well established that a prison official’s deliberate indifference to a substantial risk of

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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 objective and subjective requirements which must be met to

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prevail on such an Eighth Amendment claim. First, for the objective requirement, “the inmate

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must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id.

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Second, the prison official must have a sufficiently culpable state of mind. See id. Here the state

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of mind is one of deliberate indifference. See id. A prison official who knows of and disregards

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an excessive risk to an inmate's health or safety demonstrates deliberate indifference. See id. at

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837. Thus, “the official must both be aware of facts from which the inference could be drawn

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

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However, an official who knows of a substantial risk to an inmate’s health or safety but acts

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reasonably under the circumstances will not be held liable under the cruel and unusual

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punishment clause, even if the threatened harm results. See id. at 843.

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Plaintiff alleges that defendants Martinez and Martinez II roughly handled him following

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surgery, and placed him in an automobile following serious spinal surgery, without benefit of

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seatbelt restraints,1 and then proceeded to drive recklessly. Plaintiff alleges that defendants

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Martinez and Martinez II were aware that plaintiff had just had spinal surgery, yet deliberately

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subjected him to further injury by their actions and failure to properly restrain him and transport

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him following surgery. Liberally construed, such allegations appear to state a potentially

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cognizable Eighth Amendment claim. Plaintiff should renew such claims in his second amended

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complaint.

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Plaintiff’s administrative appeal states that plaintiff was restrained by seatbelts: “They roughly
put me in waist chain[s], then drove so fast & recklessly to SCC I bounced, slid, & swayed while
seat[-]belted in back of car.” (ECF No. 21 at 45.)
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However, plaintiff fails to state a cognizable civil rights claim as to defendant O’Leary,

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Health Care Appeals Coordinator. The appeals coordinator is not legally obligated to identify

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personnel to assist plaintiff in litigating claims in federal court. If plaintiff needs assistance in

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locating defendants Martinez and Martinez II for service of process, he may seek, through

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discovery, a copy of the October 15, 2011 transport order.

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Plaintiff again names the California Department of Corrections and Rehabilitation

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(“CDCR”) as a defendant. The Eleventh Amendment bars suits brought by private parties against

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a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan,

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440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa,

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682 F.2d 1344, 1349-50 (9th Cir. 1982). Although the Eleventh Amendment is not jurisdictional,

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the court may raise the defect on its own. Wisconsin Department of Corrections v. Schacht, 524

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U.S. 381, 389 (1998); Edelman v. Jordan, 415 U.S. 651, 677-78 (1974). In the instant case, the

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State of California has not consented to suit. Accordingly, plaintiff’s claims against the CDCR

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are legally frivolous and should be omitted from any second amended complaint.

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It is unclear whether plaintiff can allege sufficient facts to demonstrate a cognizable civil

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rights claim against defendants Beard and Cate. Plaintiff alleges no facts demonstrating that

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defendants Beard or Cate were aware of the events that took place on October 15, 2011.

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Moreover, as set forth above, allegations based on a respondeat superior theory are unavailing.

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Finally, plaintiff fails to allege facts stating a cognizable claim for conspiracy. A

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conspiracy claim brought under § 1983 requires proof of “‘an agreement or meeting of the minds

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to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting

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United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989)

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(citation omitted)), and an actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d

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1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121,

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1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the exact

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details of the plan, but each participant must at least share the common objective of the

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conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).

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The federal system is one of notice pleading, and the court may not apply a heightened

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pleading standard to plaintiff’s allegations of conspiracy. Empress LLC v. City and County of

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San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1126 (9th Cir. 2002). However, although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level. . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). A plaintiff must set forth “the grounds of his entitlement to

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relief[,]” which “requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action. . . .” Id. (internal quotations and citations omitted); see Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009). As such, a bare allegation that defendants conspired to

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violate plaintiff's constitutional rights will not suffice to give rise to a conspiracy claim under §

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1983.

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For all of the above reasons, the court finds the allegations in plaintiff's amended

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complaint so vague and conclusory that it is unable to determine whether the current action is

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frivolous or fails to state a claim for relief. The court has determined that the amended complaint

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

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

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elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649

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(9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which

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

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with the requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be dismissed. The

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court will, however, grant leave to file a second amended complaint.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have 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). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 362; May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Duffy, 588 F.2d at 743. Furthermore, vague and conclusory
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allegations of official participation in civil rights violations are not sufficient. Ivey, 673 F.2d at

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268.

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s second 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 requirement is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.
Finally, plaintiff shall file his second amended complaint on the form provided by the

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Clerk of Court. No exhibits are required. The exhibits previously provided by plaintiff remain

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part of the court record and may be referred to by any party. (ECF No. 21 at 17-63.)

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

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1. Plaintiff’s amended complaint is dismissed.

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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

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

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint, and must be filed on the

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form provided by the Clerk of Court; failure to file a second amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed.

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3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

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complaint pursuant to 42 U.S.C. § 1983.

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Dated: August 26, 2014

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/orti0617.14b

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