Clark v. Herrera et al

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 08/05/14 granting 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be paid in accordance with the court's CDC o rder filed concurrently herewith. Plaintiff's complaint and supplemental complaints 1 , 5 and 8 are dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. The clerk of the court shall send plaintiff the court's form for filing a civil rights action. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 QUINTERRIOUS CLARK, 12 Plaintiff, 13 14 15 v. No. 2:13-cv-1885 JAM DAD P ORDER M. HERRERA et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 21 22 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. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 2 1915(b)(2). 3 SCREENING REQUIREMENT 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 6 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 7 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 8 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 9 U.S.C. § 1915A(b)(1) & (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989); Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 17 18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 However, in order to survive dismissal for failure to state a claim a complaint must contain more 22 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 24 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 25 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 26 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 27 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 28 ///// 2 1 The Civil Rights Act under which this action was filed provides as follows: 2 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. 3 4 5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 7 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 8 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 9 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 10 omits to perform an act which he is legally required to do that causes the deprivation of which 11 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 13 their employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisorial position, the causal link between him and the claimed constitutional 15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 17 concerning the involvement of official personnel in civil rights violations are not sufficient. See 18 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 19 PLAINTIFF’S COMPLAINT 20 In the present case, plaintiff has identified as defendants Lieutenant Hilliard and 21 Correctional Officers Herrera, Zavalas, Ellis, Weber, Kaiser, Scopello, and Purcell. All of the 22 named defendants appear to be employed at Mule Creek State Prison. According to the 23 complaint, defendant Herrera has repeatedly come to plaintiff’s cell and called him a “weirdo, 24 creep, and a little molester.” Plaintiff alleges that this verbal harassment has caused him distress 25 and has humiliated him in front of his fellow inmates because they assume he is “of this nature,” 26 which according to plaintiff is not true. Plaintiff also alleges that defendants Zavalas and Ellis 27 have thrown away his dinner tray and skipped his cell when inquiring which inmates want to 28 shower. (Compl. at 5 & Attachs.) 3 1 In addition to his complaint, plaintiff has filed two supplemental complaints with the 2 court. In the first supplemental complaint, plaintiff alleges that defendant Kaiser and defendant 3 Richardson have conducted cell searches of his cell and left his cell in disarray. According to 4 plaintiff, they have also confiscated and thrown away some of his property. In his second 5 supplemental complaint, plaintiff alleges that defendant Vanni has called him a rapist and 6 allegedly slandered him in front of other inmates. (Pl.’s First and Sec. Supp. Compls.) 7 DISCUSSION 8 The allegations in plaintiff’s complaint are so vague and conclusory that the court is 9 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 10 complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). 11 Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to 12 the defendants and must allege facts that support the elements of the claim plainly and succinctly. 13 Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege 14 with at least some degree of particularity overt acts which defendants engaged in that support his 15 claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 16 8(a)(2), the court will dismiss his complaint. The court will, however, grant him leave to file an 17 amended complaint. 18 In any amended complaint plaintiff elects to file, he must identify each defendant by name 19 and state therein all of the claims that he seeks to bring in this action. The court will not allow the 20 piecemeal filing of supplemental complaints. See Local Rule 15-220. Moreover, if plaintiff 21 chooses to file an amended complaint, he must allege in specific terms how each named 22 defendant was involved in the deprivation of plaintiff’s rights. There can be no liability under 42 23 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions 24 and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 25 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and 26 conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. 27 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 ///// 4 1 In any amended complaint plaintiff elects to file, he must clarify what constitutional right 2 he believes each defendant has violated and support each claim with factual allegations about 3 each defendant’s actions. Plaintiff’s original complaint primarily focuses on the defendants 4 harassing him by calling him names and throwing away his meals or skipping over his cell during 5 shower time. First, plaintiff is advised that slander is not a cognizable claim under § 1983. See 6 Hollister v. Tuttle, 210 F.3d 1033, 1036 (9th Cir. 2000) (“There is no civil rights action for 7 slander.”). Similarly, verbal harassment or abuse alone do not violate the Constitution and thus 8 does not give rise to a cognizable claim under § 1983. Austin v. Terhune, 367 F.3d 1167, 1171- 9 72 (9th Cir. 2004); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (vulgar language 10 and verbal harassment do not state a constitutional deprivation under § 1983). Plaintiff is further 11 advised that the denial of meals or shower privileges on occasion does not give rise to a 12 constitutional claim for cruel and unusual punishment because the routine discomfort inherent in 13 the prison setting is inadequate to satisfy the objective prong of an Eighth Amendment inquiry. 14 Only those deprivations denying “the minimal civilized measure of life’s necessities” are 15 sufficiently grave to form the basis of an Eighth Amendment violation.” Rhodes v. Chapman, 16 452 U.S. 337, 347 (1981). 17 Finally, the court notes that insofar as plaintiff wishes to proceed on a claim for loss of 18 property, he is advised that the United States Supreme Court has held that “an unauthorized 19 intentional deprivation of property by a state employee does not constitute a violation of the 20 procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 21 postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). 22 Thus, where the state provides a meaningful postdeprivation remedy, only authorized, intentional 23 deprivations constitute actionable violations of the Due Process Clause. An authorized 24 deprivation is one carried out pursuant to established state procedures, regulations, or statutes. 25 Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 26 832 F.2d 1142, 1149 (9th Cir. 1987). In his first supplemental complaint, plaintiff has not alleged 27 any facts suggesting that the taking of his property was authorized. The California Legislature 28 has provided a remedy for tort claims against public officials in California Government Code, §§ 5 1 900, et seq. If plaintiff has not attempted to seek redress in the state system, he will not be able to 2 sue in federal court on the claim that the state deprived him of property without due process of the 3 law. 4 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 5 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 6 complete in itself without reference to any prior pleading. This is because, as a general rule, an 7 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 8 Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 9 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 10 and the involvement of each defendant must be sufficiently alleged. 11 CONCLUSION 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee 15 shall be collected and paid in accordance with this court’s order to the Director of the California 16 Department of Corrections and Rehabilitation filed concurrently herewith. 17 3. Plaintiff’s complaint and supplemental complaints (Doc. Nos. 1, 5 & 8) are dismissed. 18 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 19 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 20 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 21 assigned to this case and must be labeled “Amended Complaint”; failure to file an amended 22 complaint in accordance with this order will result in a recommendation that this action be 23 dismissed without prejudice. 24 5. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil 25 rights action. 26 Dated: August 5, 2014 27 28 6 1 DAD:9 clar1885.14a 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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