Troung v. Macomber

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/28/15 ORDERING that Plaintiff's Request to proceed in forma pauperis 2 is GRANTED. Plaintiff shall pay the the statutory filing fee of $350. All payments shall be collected in acco rdance with the notice to the California Department of Corrections and Rehabilitation filed April 23, 2015 (ECF No. 5 ). The complaint is dismissed with leave to amend within 30 days. Failure to comply with this order will result in dismissal of this action for failure to prosecute.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOANG TROUNG,

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Plaintiff,

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No. 2:14-cv-1590-EFB P

v.
JEFF MACOMBER,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. § 1915A

Defendant.

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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. § 1983.1 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
Plaintiff’s 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 directed 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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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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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)
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, 556

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U.S. 662, 679 (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.” Iqbal, 556 U.S. at

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678.

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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, 556 U.S. at 678. 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, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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

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III.

Screening Order
Plaintiff claims that two unknown “Doe” defendants were responsible for transporting him

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by bus between two prisons. He claims that the reckless driving of Doe defendant 1 caused them

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to get into an accident with another car. Plaintiff claims he was shackled during the transport and

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that the bus was devoid of any safety apparatus to prevent injuries or to allow him to protect

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himself in the event of an accident. He claims both defendants were aware that he was shackled

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and that the bus lacked safety features. He claims that his face, neck, and back were injured and

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that he now requires pain medication. He asks that he be allowed to proceed in this case against

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the Warden of California State Prison, Sacramento, also named as a defendant, for the purpose of

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conducting discovery to identify the two Doe defendants.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). 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).

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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). Extreme deprivations are required to make out a conditions of confinement claim, and

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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). To determine whether an Eighth Amendment violation has occurred, a

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court should consider the circumstances, nature and duration of a deprivation of these necessities.

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Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (referring to necessities such as adequate

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shelter, food, clothing, sanitation, medical care, and personal safety). Further, plaintiff must

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allege facts sufficient to support a claim that prison officials knew of and disregarded a
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substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847

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(1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Pursuant to § 1915A, the court has reviewed plaintiff’s complaint (ECF No. 1) and finds

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that it states a potentially cognizable Eighth Amendment claim of deliberate indifference to

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plaintiff’s safety against the driver, Doe defendant. See Brown v. Fortner, 518 F.3d 552 (8th Cir.

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2008) (potential Eighth Amendment violation where officer knew that prisoner was restrained

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and could not secure his own seatbelt, rejected request for a seatbelt, drove recklessly, and

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ignored requests to slow down); Wilbert v. Quarterman, 647 F. Supp. 2d 760, 769 (S.D. Tex.

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2009) (“Considering the different circuit court opinions, it appears that an allegation of simply

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being transported without a seatbelt does not, in and of itself, give rise to a constitutional claim.

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However, if the claim is combined with allegations that the driver was driving recklessly, this

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combination of factors may violate the Eighth Amendment.”); Brown v. Saca, No. EDCV 09-

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01608-ODW, 2010 U.S. Dist. LEXIS 64964, at *9 (C.D. Cal. June 9, 2010) (“plaintiff’s

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allegations that Saca and Crispin refused to secure his seatbelt are sufficient to state a claim under

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the Eighth Amendment because he has alleged that Saca and Crispin acted recklessly”).

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Nevertheless, plaintiff’s naming of Doe defendants is problematic and requires that the

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complaint must be dismissed with leave to amend. Unknown persons cannot be served with

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process until they are identified by their real names and the court will not investigate the names

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and identities of unnamed defendants.2 Here, there are no named defendants upon whom plaintiff

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could serve discovery requests to identify the unknown defendant.

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The allegations against Doe defendant 2, who merely accompanied plaintiff during the

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transport, are not sufficient to state a claim of deliberate indifference. See King v. San Joaquin

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County Sheriff's Dep’t, No. 04-cv1158-GEB-KJM, 2009 U.S. Dist. LEXIS 123283, at *11 (E.D.

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Cal. Mar. 4, 2009) (“[A] prison’s or jail’s failure to equip a van or bus with seatbelts for the

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prisoners does not rise to the level of deliberate indifference as a matter of constitutional law.”),

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adopted by 2009 U.S. Dist. LEXIS 28630 (E.D. Cal. Apr. 4, 2009); Harrington v. Bautista, No.

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Any request for records of that information pursuant to state law must be pursued by the

plaintiff.
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1:10-cv-01802-LJO-SAB, 2014 U.S. Dist. LEXIS 1623, at *9-10 (E.D. Cal. Jan. 6, 2014)

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(allegations that officers, who merely assisted in transporting plaintiff, failed to demonstrate that

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they knew of and disregarded a substantial risk of serious harm to plaintiff).

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Plaintiff also fails to plead any facts to support a cause of action against Warden

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Macomber, and there appears to be no basis for a claim against him. Plaintiff admits that the only

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reason he named the Warden as a defendant was so he would be allowed to serve the Warden

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with discovery requests. That is not a proper basis for naming an individual as a defendant.

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For these reasons, the complaint is dismissed with leave to amend. An amended

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complaint must identify any doe defendants by name. If plaintiff is still unable to identify them

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by name, he must explain what efforts he has made, if any, to locate this information. If plaintiff

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believes that the Warden has information that would help plaintiff identify the doe defendants,

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then he must state the basis for that belief and request an opportunity to discover their identities.

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Any amended complaint 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).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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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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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 E.D. Cal. Local Rule 110.

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IV.

Summary of Order

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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. 2) 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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April 23, 2015 (ECF No. 5).

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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 “Third 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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prosecute.

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Dated: April 28, 2015.

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