Tombs v. Wallace

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/12/2016 RECOMMENDING plaintiff's 22 second amended complaint be dismissed for failure to state a claim, without further leave to amend, and this case be closed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 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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LARRY E. TOMBS,

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No. 2:13-cv-1340-MCE-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

JORDAN KEITH WALLACE,

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Defendant.

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Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint

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(Doc. 22).

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As set forth in previous orders, the court is required to screen complaints brought

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by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion

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thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be

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granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “short and plain statement of the claim showing that the pleader is entitled
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to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and

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directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P.

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8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the

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plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts

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by specific defendants which support the claims, vague and conclusory allegations fail to satisfy

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this standard. Additionally, it is impossible for the court to conduct the screening required by

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law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff fails to state his claims with any more clarity than he did in his first

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amended complaint. They remain vague and difficult to decipher. In his first amended

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complaint, plaintiff made vague allegations as to lack of medical treatment, use of excessive

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force, retaliation, and tampering with mail. He continues to make the same allegations in his

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second amended complaint, but offers no further clarity.

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II. DISCUSSION
Plaintiff’s allegations are so vague and conclusory that the court is unable to

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determine whether the claims are frivolous, fanciful, or if the complaint fails to state a claim for

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relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice to the defendants and must allege facts that support 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 his claims. Id. His amended complaint fails to cure the defects outlined in the court’s

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prior order and fails to comply with the requirements of Fed. R. Civ. P. 8(a)(2).

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Plaintiff was informed as to what is required to state a claim under 42 U.S.C. §

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1983. Plaintiff was told that he must allege an actual connection or link between the actions of

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the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436
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U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). He was further instructed

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as to what was required to state a claim for excessive force in violation of the Eighth

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Amendment, retaliation, and mail tampering as related to his First Amendment rights.

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Plaintiff failed to follow the court’s instructions as to what was required to state a

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claim. He also failed to file an amended complaint that meets the pleading standards required by

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Rule 8. As stated above, the Federal Rules of Civil Procedure requires a plaintiff to “plead a

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short and plain statement of the elements of his or her claim, identifying the transaction or

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occurrence giving rise to the claim and the elements of the prima facie case.” Bautista v. Los

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Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). Plaintiff’s amended complaint fails to

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sufficiently state his claims and supporting facts. In addition, he appears to continue to attempt

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to assert unrelated claims against unrelated parties, in violation of Rule 18.

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Plaintiff’s only possible claim is against defendant Wallace for excessive force.

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However, as the court previously explained, the treatment a prisoner receives in prison and the

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conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509

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U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . .

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embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison

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officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and

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personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official

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violates the Eighth Amendment only when two requirements are met: (1) objectively, the
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official’s act or omission must be so serious such that it results in the denial of the minimal

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civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted

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unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834.

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Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable

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mind.” See id.

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When prison officials stand accused of using excessive force, the core judicial

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inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as

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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

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is applied to excessive force claims because prison officials generally do not have time to reflect

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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

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U.S. at 320-21. In determining whether force was excessive, the court considers the following

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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

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between the need for force and the amount of force used; (4) the nature of the threat reasonably

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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

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because the use of force relates to the prison’s legitimate penological interest in maintaining

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security and order, the court must be deferential to the conduct of prison officials. See Whitley,

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475 U.S. at 321-22.

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Plaintiff provides no further information as to the situation when he alleges

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defendant Wallace body slammed him against a wall. He fails to allege what occurred during

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this incident, what defendant Wallace’s motivation was for using force, and whether plaintiff

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suffered any injuries as a result of the force. Plaintiff has failed to heed the court’s instruction
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and provide the court with the necessary information for the court to evaluate this claim.

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IV. CONCLUSION
Plaintiff’s second amended complaint fails to state a claim. It is up to plaintiff to

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formulate and articulate his claim, not for the court or the defendants to try to decipher what

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claims plaintiff has. Plaintiff was given specific and detailed information as to what was

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required in order to state a claim. He has failed to follow the court’s direction to cure the defects

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in his complaint. It appears that plaintiff is either unable or unwilling to amend the complaint in

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which to state a claim. Thus, further leave to amend should be denied.

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Based on the foregoing, the undersigned recommends that plaintiff’s second

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amended complaint be dismissed for failure to state a claim, without further leave to amend, and

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this case be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Failure to file objections within the specified time may waive the right

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to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 12, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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