Brown v. Hill et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/6/2015 GRANTING plaintiff's 4 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. The complaint is DISMISSED with leave to amend 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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JACK BROWN,

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Plaintiff,

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No. 2:14-cv-0452-MCE-EFB P

v.

ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND

RICK HILL, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915.

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I.

Request to Proceed In Forma Pauperis
His application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
Plaintiff alleges that defendants Hill, Ostrom, and Albin imposed a race-based lockdown

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on March 8, 2012 that caused him to be confined to his cell for 23 hours a day. He does not

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allege how long the lockdown lasted. He claims he was subject to the lockdown because he was

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incorrectly identified as a gang member. Thus, it is not clear whether the lockdown was actually
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race-based, or instead based on gang-affiliation. Plaintiff also claims that the documents falsely

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identifying him as a gang member amount to slander. He further claims that the lockdown was

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some form of retaliation, and that the “slander” was also in retaliation for his filing of a grievance

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regarding the lockdown. It is unclear how the allegedly slanderous statement that plaintiff was a

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gang member could have been made in retaliation for plaintiff’s filing of a complaint regarding

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the lockdown, given plaintiff’s representation that he was locked down because of the

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purportedly false identification of him as a gang member. Plaintiff also alleges that defendants

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Hill, Ostrom, Most, Albin, Allen, and Lozano denied his administrative appeal.

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Having reviewed plaintiff’s complaint pursuant to § 1915A, the court finds that the

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allegations are too vague and conclusory to state a cognizable claim for relief. 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. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts

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which defendants engaged in that support plaintiff’s claim. Id. Because plaintiff fails to state a

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claim for relief, the complaint must be dismissed.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Id.

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/////
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There are no constitutional requirements regarding how a grievance system is operated.

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See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of

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a liberty interest in the processing of his appeals does not violate due process because prisoners

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lack a separate constitutional entitlement to a specific prison grievance system). Thus, plaintiff

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may not impose liability on defendants simply because they played a role in processing plaintiff’s

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inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (an administrative

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“grievance procedure is a procedural right only, it does not confer any substantive right upon the

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inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the fourteenth amendment . . . . Thus, defendants’ failure to process

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any of Buckley’s grievances, without more, is not actionable under section 1983.” (internal

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quotations omitted)).

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First

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Amendment includes communications that are “part of the grievance process.” Brodheim v. Cry,

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584 F.3d 1262, 1271 n.4 (9th Cir. 2009). If plaintiff intends to assert a retaliation claim, he must

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specifically identify the protected conduct and the individual defendant responsible for the

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retaliation.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). To show a violation of the Eighth Amendment, plaintiff must allege facts sufficient to

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support a claim that prison officials knew of and disregarded a substantial risk of serious harm to

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the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,

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1128 (9th Cir. 1998). Extreme deprivations are required to make out a conditions of confinement

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claim, and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,
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503 U.S. 1, 9 (1992). Lack of outdoor exercise for extended periods of time can be sufficiently

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serious to amount to a deprivation of the “minimal civilized measure of life’s necessities.”

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LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993).

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Negligence does not amount to a violation of a federal constitutional or statutory right. See

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Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable under

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the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate

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health or safety[.]”); see also id. at 835 (“[D]eliberate indifference describes a state of mind more

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blameworthy than negligence.”).

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“Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment

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from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974); see

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Johnson v. California, 543 U.S. 499, 515 (2005) (holding strict scrutiny should be applied to

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racial classifications in prisons). To state such a claim “a plaintiff must show that the defendants

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acted with an intent or purpose to discriminate against the plaintiff” based upon his race. Barren

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v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).

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However, a policy is suspect on its face when it considers race as a factor, and the inmate need

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not prove discriminatory intent. Walker v. Gomez, 370 F.3d 969, 973-74 (9th Cir. 2004).

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To the extent plaintiff intends to allege a defamation claim based on the allegedly

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slanderous statement that plaintiff is a gang member, he is hereby informed that defamation is a

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state-law cause of action rather than a claim under the federal Constitution, and a “claim for

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violation of state law is not cognizable under § 1983.” Cornejo v. County of San Diego, 504 F.3d

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853, 855 n.3 (9th Cir. 2007). Moreover, the California Government Claims Act (“Act”) requires

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that a plaintiff who seeks to prosecute a state tort claim for damages against a state employee first

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present that claim to the California Victim Compensation and Government Board. Cal. Gov’t

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Code §§ 905, 905.2, 910, 911.2, 911.4, 911.6, 945.4, 950-950.2; California v. Super. Ct. (Bodde),

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32 Cal.4th 1234, 1245 (2004). To state a tort claim against a state employee, the plaintiff must

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allege compliance with the Act’s presentation requirement. Bodde, 32 Cal.4th at 1245; Karim-

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Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has not pled compliance

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with the Act’s claim presentation requirement
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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 4) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.
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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in dismissal of this action for failure to

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state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: May 6, 2015.

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