Wilkerson v. Beard et al

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 10/17/2013 GRANTING plaintiff's 10 request to proceed IFP; plaintiff shall pay the $350.00 filing fee with an initial partial filing fee in accordance with the concurrent order to the Los Angeles County Sheriff; plaintiff's complaint is DISMISSED; within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER WILKERSON,

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No. 2:13-cv-1518 LKK KJN P

Plaintiff,
v.

ORDER

JEFFREY BEARD, et al.,

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Defendants.

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

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42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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

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

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

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1227.

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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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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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

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

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff states that the Los Angeles County Superior Court issued an order requiring

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plaintiff to be housed in the Los Angeles County Jail. However, on March 29, 2013, the Los

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Angeles County Sheriff’s Department transferred plaintiff to Wasco State Prison. Plaintiff claims

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that the Los Angeles County Judge issued an amended abstract of judgment requiring plaintiff to

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be housed in the Los Angeles County Jail, but the California Department of Corrections

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(“CDCR”) repeatedly violated such order by not transferring plaintiff back to the Los Angeles

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County Jail. Plaintiff notes that while he was housed in Wasco State Prison, he was attacked by

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two southern Hispanics on April 30, 2013, during a prison riot. Plaintiff adds that the medical

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department put him up for medical transfer away from the Valley Fever epidemic, and transferred

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plaintiff to Deuel Vocational Institute (“DVI”) on June 7, 2013.

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It appears that plaintiff sought relief from the Los Angeles Superior Court to facilitate his

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return to the county jail because plaintiff states that Superior Court Judge Shapiro re-issued a

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commitment order on May 9, 2013, and on June 10, 2013, stating that plaintiff’s sentence was to

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be served in the Los Angeles County Jail. (ECF No. 1 at 3.) Plaintiff was transferred from DVI

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to the Los Angeles County Jail on July 17, 2013.

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Plaintiff names five defendants: CDCR Director Jeffrey Beard, the CDCR, Los Angeles

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County Sheriff Lee Baca, the Los Angeles County Sheriff’s Department, and the Wasco State

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Prison Reception Center.

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The Eleventh Amendment bars suits brought by private parties against a state or state

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agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332

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(1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d

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1344, 1349-50 (9th Cir. 1982). Although the Eleventh Amendment is not jurisdictional, the court

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may raise the defect on its own. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381,

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389 (1998); Edelman v. Jordan, 415 U.S. 651, 677-78 (1974). In the instant case, the State of
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California has not consented to suit. Accordingly, plaintiff’s claims against the CDCR, the Los

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Angeles County Sheriff’s Department, and the Wasco State Prison Reception Center are legally

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frivolous and must be dismissed.

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With regard to the alleged wrongful transfer, the Supreme Court has held that a prisoner

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has no constitutional right to incarceration in a particular institution or housing unit. See Olim v.

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Wakinekona, 461 U.S. 238, 244-48 (1983) (just as inmate has no justifiable expectation that he

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will be incarcerated in any particular prison within any state, he has no justifiable expectation that

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he will be incarcerated in any particular state). Thus, plaintiff's request for money damages due

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to the failure to retain him in the Los Angeles County Jail, or to house him in a particular jail, has

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no statutory or constitutional basis. See White v. Lambert, 370 F.3d 1002, 1013 (9th Cir. 2004)

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(state prisoner transferred from a Washington state prison to a privately-run prison in Colorado

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had no liberty interest created by state law, and protected by the Due Process Clause, to

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imprisonment in a particular prison), overruled on other grounds by Hayward v. Marshall, 603

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F.3d 546, 554 (9th Cir. 2010). Because plaintiff has no constitutional right to incarceration in the

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Los Angeles County Jail, plaintiff fails to state a cognizable civil rights claim. Such claim should

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not be included in any amended complaint.

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Plaintiff included no charging allegations as to Sheriff Baca or CDCR Director Beard. To

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the extent plaintiff named these defendants based solely on their roles as supervisors, such claims

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are unavailing. 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).

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Finally, it is unclear whether plaintiff may be able to state a cognizable civil rights claim

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based on allegations that prison officials at Wasco failed to protect plaintiff from a known and

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substantial risk of harm in connection with the April 2013 prison riot.

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“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other

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prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). “Being violently assaulted in prison is

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simply not part of the penalty that criminal offenders pay for their offense against society.” Id. at

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834 (internal citation omitted). However, prison officials do not incur constitutional liability for

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every injury suffered by a prisoner. Id. A prison official violates the Eighth Amendment “only if

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he knows that inmates face 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. Under this standard, a prison official must have

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a “sufficiently culpable state of mind,” one of deliberate indifference to the inmate's health or

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safety. Id. at 834. If plaintiff elects to file an amended complaint, he must allege facts

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demonstrating how each defendant's actions rose to the level of “deliberate indifference” to his

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health and safety. In other words, plaintiff must allege that the defendants knew he was at risk of
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being attacked and explain how the defendants' response to this threat of attack was unreasonable.

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Plaintiff is cautioned that “prison officials who lacked knowledge of a risk cannot be said to have

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inflicted punishment.” Farmer, 511 U.S. at 844.

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The court grants plaintiff leave to file an amended complaint should plaintiff be able to

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allege facts demonstrating that specific prison officials knew plaintiff faced a substantial risk of

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harm yet failed to take steps to abate such harm.

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it 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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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo, 423

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U.S. at 371. Also, the complaint must allege in specific terms how each named defendant is

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involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative

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link or connection between a defendant’s actions and the claimed deprivation. Id.; May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d at 743. Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. Ivey, 673 F.2d at 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 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 exists

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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 an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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

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

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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 Los

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Angeles County Sheriff filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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

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

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

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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Dated: October 17, 2013

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wilk1518.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER WILKERSON,

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No. 2:13-cv-1518 LKK KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

JEFFREY BEARD, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint

DATED:
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Plaintiff