Jamison v. YC Parmia Insurance Group et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 8/26/2014 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JAMISON, 12 13 14 15 Plaintiff, v. ORDER YC PARMIA INSURANCE GROUP, et al., Defendants. 16 17 No. 2:14-cv-1710 GEB KJN P Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 20 § 636(b)(1). 21 22 23 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. §§ 24 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 26 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 27 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 28 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 1 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 2 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 3 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 The Civil Rights Act under which this action was filed provides as follows: 6 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. 7 8 9 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 12 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 13 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 14 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 15 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 16 affirmative act, participates in another's affirmative acts or omits to perform an act which he is 17 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 18 588 F.2d 740, 743 (9th Cir. 1978). 19 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 20 their employees under a theory of respondeat superior and, therefore, when a named defendant 21 holds a supervisorial position, the causal link between him and the claimed constitutional 22 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 23 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 24 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 25 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 26 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 27 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 28 participation is insufficient). 3 1 Plaintiff alleges that while he was being transported by van from Deuel Vocational 2 Institution (“DVI”) to the Yolo County Jail, the Yolo County Sheriff’s Officers did not use seat 3 belts to buckle plaintiff up, nor was the van equipped with any safety belts. During this transport, 4 plaintiff alleges the officer was driving 80 miles an hour and collided with a big rig on the 5 interstate. Plaintiff sustained neck and back injuries, as well as “permanent left leg deadness.” 6 (ECF No. 1 at 3.) 7 It appears plaintiff may state a cognizable Eighth Amendment violation. However, 8 plaintiff did not sign or date the complaint. Rule 11 of the Federal Rules of Civil Procedure 9 requires that all pleadings be signed by pro se litigants. Accordingly, plaintiff’s complaint is 10 dismissed with leave to file a signed amended complaint. 11 In addition, plaintiff appended various copies of pages from law books. (ECF No. 1 at 4- 12 9.) Plaintiff is advised that he is not required to cite case law or other legal authorities, but rather 13 should focus on the factual allegations supporting his contentions that the defendants violated his 14 constitutional rights. 15 16 17 Finally, plaintiff is reminded that he must include charging allegations as to each named defendant. The Eighth Amendment's prohibition on cruel and unusual punishment imposes on prison 18 officials, among other things, a duty to “take reasonable measures to guarantee the safety of the 19 inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S. 20 517, 526-27 (1984)). To properly allege an Eighth Amendment claim for failure to protect, the 21 inmate must assert that he was incarcerated under conditions posing a “substantial risk of serious 22 harm,” and that a prison official displayed “deliberate indifference” to that risk. Id. at 834. A 23 prison official displays deliberate indifference when he is “both aware of facts from which the 24 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 25 inference.” Id. at 837. 26 In any amended complaint, plaintiff must specifically identify the acts or omissions that 27 plaintiff contends constitute deliberate indifference to plaintiff’s safety in violation of the Eighth 28 Amendment. In other words, plaintiff must allege facts demonstrating that each named defendant 4 1 was aware that plaintiff’s safety was at risk. 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 6 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 7 Director of the California Department of Corrections and Rehabilitation filed concurrently 8 herewith. 9 10 11 3. Plaintiff’s complaint is dismissed. 4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court: 12 a. The completed Notice of Amendment; and 13 b. An original and one copy of the signed Amended Complaint. 14 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 15 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 16 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 17 Failure to file an amended complaint in accordance with this order may result in the dismissal of 18 this action. 19 Dated: August 26, 2014 20 21 /jami1710.14 22 23 24 25 26 27 28 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JAMISON, 12 13 14 15 No. 2:14-cv-1710 TLN KJN P Plaintiff, v. NOTICE OF AMENDMENT YC PARMIA INSURANCE GROUP, et al., Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ 20 Signed Amended Complaint DATED: 21 22 23 24 25 26 27 28 ________________________________ Plaintiff

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