Zamora v. Jones

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 2/26/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs amended complaint is DISMISSED with 30 days to amend. Clerk of the Court is directed to send plaintiff the form for filing a civil rights action by a prisoner.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY ZAMORA, JR.,

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No. 2:14-cv-2731 KJN P

Plaintiff,
v.

ORDER

SCOTT JONES, et al.,
Defendants.

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Plaintiff is housed in the Sacramento County Jail, proceeding without counsel. Plaintiff

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seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Accordingly, the request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will

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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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

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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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On December 8, 2014, plaintiff filed an amended complaint as of right. Fed. R. Civ. P.

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15. Plaintiff names Sheriff Scott Jones, “his deputies” and his “administrative staff,” as well as

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Lynda E. Marlow, as defendants herein. Plaintiff claims, inter alia, that defendant Jones

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employed Marlow to murder plaintiff, resulting in plaintiff’s arrest for domestic violence. (ECF

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No. 7 at 1.) Plaintiff also claims that defendant Jones, his deputies and staff, allegedly employed

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the Mexican Mafia and the Nuestra Familia to murder plaintiff, apparently by placing a known

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enemy in plaintiff’s cell, resulting in the inmate attempting to stab plaintiff to death with a knife.

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Plaintiff seeks money damages, the dismissal of pending criminal charges, and the right to receive

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Marlow’s hand in marriage. (ECF No. 7 at 2.)

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The Civil Rights Act under which this action was filed provides as follows:

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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.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).
Thus, plaintiff cannot name broad categories as defendants. Plaintiff must specifically
name individuals, and include specific charging allegations as to each individual.

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Plaintiff’s allegations concerning Marlow’s alleged attempt to murder plaintiff stem from

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the domestic violence charges resulting in plaintiff’s arrest. In Heck v. Humphrey, 512 U.S. 477

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(1994), the United States Supreme Court held that a suit for damages on a civil rights claim

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concerning an allegedly unconstitutional conviction or imprisonment cannot be maintained absent

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proof “that the conviction or sentence has been reversed on direct appeal, expunged by executive

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order, declared invalid by a state tribunal authorized to make such determination, or called into

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question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512

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U.S. at 486. Because plaintiff’s allegations concerning Marlow’s alleged attempted murder are

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intertwined with the facts resulting in plaintiff’s arrest, such claims are barred by Heck. Plaintiff

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should not renew such claims in any second amended complaint.

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Moreover, to the extent plaintiff seeks to have pending criminal charges dismissed, such

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relief is not available through a civil rights action. Challenges to the fact or duration of plaintiff’s

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confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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While not entirely clear, plaintiff may be able to state a cognizable civil rights claim under

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the Eighth Amendment in connection with his cellmate’s alleged attempted murder of plaintiff.

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“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other
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prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). “Being violently assaulted in prison is

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simply not part of the penalty that criminal offenders pay for their offense against society.” Id. at

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834 (internal citation omitted). However, prison officials do not incur constitutional liability for

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every injury suffered by a prisoner. Id. A prison official violates the Eighth Amendment “only if

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he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to

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take reasonable measures to abate it.” Id. at 847. Under this standard, a prison official must have

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a “sufficiently culpable state of mind,” one of deliberate indifference to the inmate’s health or

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safety. Id. at 834. If plaintiff elects to file a second amended complaint, he must allege facts

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demonstrating how each defendant’s actions rose to the level of “deliberate indifference” to his

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health and safety. In other words, plaintiff must allege that the defendants knew he was at risk of

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being attacked and explain how each defendant’s response to this threat of attack was

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unreasonable. Plaintiff is cautioned that “prison officials who lacked knowledge of a risk cannot

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be said to have inflicted punishment.” Farmer, 511 U.S. at 844.

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity

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overt acts which each defendant engaged in that support plaintiff’s claim. Id. Because plaintiff

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has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint

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must be dismissed. In an abundance of caution, however, the court will grant leave to file a

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second amended complaint.

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

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the second amended complaint must allege in specific

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terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey, 673 F.2d at 268.
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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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an 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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A prisoner may bring no § 1983 action until he has exhausted such administrative

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remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v.

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Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “any

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departmental decision, action, condition, or policy which they can demonstrate as having an

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adverse effect upon their welfare.” Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be

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presented on the appropriate form used in the agency’s administrative appeal process. Therefore,

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this court ordinarily will review only claims against jail or prison officials within the scope of the

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problem reported through the administrative appeal process. Plaintiff is further admonished that

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by signing a second amended complaint he certifies his claims are warranted by existing law,

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including the law that he exhaust administrative remedies, and that for violation of this rule

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plaintiff risks dismissal of such unexhausted claims.

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Finally, any second amended complaint must be filed on the form provided by the Clerk
of Court.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Sacramento County Sheriff filed concurrently herewith.

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3. Plaintiff’s amended complaint is dismissed.
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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:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act,

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the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

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complaint must also bear the docket number assigned to this case and must be labeled “Second

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Amended Complaint.” Failure to file a second amended complaint in accordance with this order

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may result in the dismissal of this action.

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5. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

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action by a prisoner.

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Dated: February 26, 2015

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cw/zamo2731.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY ZAMORA, JR.,

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No. 2:14-cv-2731 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

SCOTT JONES, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court’s order
filed______________.
_____________

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Second Amended Complaint

DATED:
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Plaintiff