Joseph v. Parciasepe, et al.

Filing 12

ORDER signed by Magistrate Judge Allison Claire on 12/3/2014 DISMISSING the amended complaint with leave to file a second amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JAMES JOSEPH,

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Plaintiff,

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No. 2:14-cv-00414 AC P

v.

ORDER

T. PARCIASEPE, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. This action was originally initiated by a civil complaint filed by plaintiff in the

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Amador County Superior Court on October 18, 2013. ECF No. 2 at 1. Defendants Parciasepe

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and Knipp were served with a copy of the summons and complaint on January 14, 2014. ECF

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No. 2 at 1 ¶ 2. Defendants removed this action to federal court on February 6, 2014. ECF No. 2.

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Plaintiff consented to the jurisdiction of the undersigned for all further proceedings on February

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14, 2014. ECF No. 4. The court screened the complaint and dismissed it with leave to amend.

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ECF No. 9. Plaintiff has now filed an amended complaint, which must also be screened. ECF

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No. 10.

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I.

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

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 must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading

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must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of]

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a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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566 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969).

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II.

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Plaintiff’s Complaint
Plaintiff sets forth three separate causes of action. The First Cause of Action alleges that

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Officer T. Parciasepe has an “extensive history of harassing, retaliating, intimidating, threatening,

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and staging violence against inmates.” ECF No. 10 at 5. It further alleges that Parciasepe
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threatened plaintiff by stating that plaintiff was going to be his next victim. ECF No. 10 at 5.

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This conduct “created an unreasonable risk and harm to plaintiff,” demonstrated “deliberate

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indifference to plaintiff’s Eighth Amendment rights,” and caused plaintiff to suffer “irreparable

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harm.” Id. at 6.

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The Second Cause of Action asserts a retaliation claim based on the allegation that Officer

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Parciasepe “continuously had his co-workers constantly harass” plaintiff, and “excessively

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search” his cell “without any probable cause.” ECF No. 10 at 7. These cell searches were

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conducted, according to plaintiff, because he had filed a prior staff complaint and group appeals

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against Officer Parciasepe. ECF No. 10 at 7. This conduct “created an unreasonable risk and

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harm to plaintiff,” demonstrated “deliberate indifference to plaintiff’s Eighth Amendment rights,”

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and caused plaintiff to suffer “irreparable harm.” Id. at 8.

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The Third Cause of Action asserts that defendant William Knipp failed to protect plaintiff

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in violation of the Eighth Amendment because he knew that Officer Parciasepe had violated

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plaintiff’s rights, but he failed to take any corrective action. ECF No. 10 at 9. This caused

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plaintiff to suffer emotional distress. ECF No. 10 at 9.

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III.

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Legal Standards
To state a valid claim under 42 U.S.C. § 1983, “the complaint must allege facts which, if

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true, would show that the defendants, while acting under color of State law, subjected the plaintiff

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to the deprivation of a constitutional right.” Padilla v. Lynch, 398 F.2d 481, 482 (9th Cir. 1968).

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Further, plaintiff must allege that he suffered a specific injury as a result of specific conduct of a

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defendant and show an affirmative link between the injury and the conduct of that defendant.

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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 the

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plaintiff's claim”) (internal quotation marks omitted).

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As for the Eighth Amendment Claim,

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a prison official violates the Eighth Amendment only when two
requirements are met. First, the deprivation alleged must be,
objectively, sufficiently serious; a prison official's act or omission
must result in the denial of the minimal civilized measure of life's
necessities. For a claim . . . based on a failure to prevent harm, the
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inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm.

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The second requirement follows from the principle that only the
unnecessary and wanton infliction of pain implicates the Eighth
Amendment. To violate the Cruel and Unusual Punishments
Clause, a prison official must have a sufficiently culpable state of
mind.

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Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations and internal quotation marks omitted).

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The prison official will be liable only if “the official knows of and disregards an excessive risk to

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inmate health and safety; the official must both be aware of facts from which the inference could

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

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at 837.
Finally, “[p]risoners have a First Amendment right to file grievances against prison

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officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114

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(9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable

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retaliation claim in the prison context has five elements: “(1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005).

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IV.

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Analysis
Plaintiff’s amended complaint makes substantially the same allegations as are contained in

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the original complaint, which this court has already dismissed. The allegations that plaintiff has

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added do nothing to buttress plaintiff’s claims.

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The First Cause of Action adds (and then repeats) an allegation that defendant Parciasepe

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engaged in “harassment, retaliation, intimidation, and cruel and unusual punishment, guaranteed

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to the plaintiff by the Eighth Amendment of the United States Constitution.” ECF No. 10 at 5.

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The allegation fails to establish any specific overt acts, but instead alleges the legal conclusion

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that plaintiff suffered harassment, retaliation, intimidation and cruel and unusual punishment.

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This is insufficient to state a claim under Section 1983. Jones, 733 F.2d at 649 (requiring that
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plaintiff allege with “some degree of particularity overt acts” by defendants that violate plaintiff’s

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rights). As in the original complaint, the only specific overt act plaintiff alleges is that defendant

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Parciasepe verbally threatened him. For the reasons stated in the court’s prior order, verbal

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threats, without more, are generally insufficient to state a Section 1983 claim for violation of the

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Eighth Amendment. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam) (a “mere

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naked threat” from prison guards does not violate the Eighth Amendment).

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The Second Cause of Action also adds (and then repeats) an allegation that defendant

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Parciasepe engaged in “harassment, retaliation, intimidation, and cruel and unusual punishment,

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guaranteed to the plaintiff by the Eighth Amendment of the United States Constitution.” ECF

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No. 10 at 7. For the reasons just stated, this allegation fails to state a Section 1983 claim, because

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it states only legal conclusions. Plaintiff’s only specifically alleged overt act is that defendant

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harassed and retaliated against plaintiff by having his cell excessively searched, without probable

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cause. This is the same allegation the court found insufficient in the original complaint. For the

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reasons stated in the court’s prior order, this fails to state a constitutional claim, as cells may be

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randomly searched, and such searches do not require probable cause. See Hudson v. Palmer, 468

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U.S. 517, 529 (1984).

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The Third Cause of Action alleges that defendant Knipp failed to protect plaintiff from

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defendant Parciasepe, and as a result plaintiff suffered emotional distress. This is the same

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allegation that was dismissed in the original complaint. For the reasons stated in the court’s prior

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order, therefore, this allegation fails to state a claim. Specifically, as discussed above, plaintiff

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has failed to allege constitutional harm by Parciasepe that would require protection from Knipp.

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Also, emotional distress, the only harm claimed here, is not a sufficient harm under Section 1983.

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See 42 U.S.C. § 1997e(e) (“ [n]o Federal civil action may be brought by a prisoner confined in a

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jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody

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without a prior showing of physical injury . . .”); Minneci v. Pollard, 132 S. Ct. 617, 625 (2012)

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(“Prisoners bringing federal lawsuits, for example, ordinarily may not seek damages for mental or

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emotional injury unconnected with physical injury”).

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Based on these deficiencies, plaintiff’s complaint fails to state any colorable claim for

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relief.

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V.

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Leave to Amend
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely

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given when justice so requires. The court will provide plaintiff with time to file a second

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amended complaint curing the deficiencies identified above. Plaintiff is granted leave to file an

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amended complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff is cautioned that simply re-alleging the same facts that the court has twice found

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to be insufficient will result in a recommendation that this action be dismissed with prejudice. If

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

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

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

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

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

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of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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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 is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in a second 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 the amended complaint is

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dismissed for the reasons discussed above, with leave to file an amended complaint within thirty
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(30) days from the date of this order. Failure to file an amended complaint will result in a

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dismissal of this action.

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DATED: December 3, 2014

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