Crane v. Rodriguez et al

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 3/13/15 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSEPH CRANE,

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No. 2:15-cv-0208 KJN P

Plaintiff,
v.

ORDER

RODRIGUEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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

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§ 636(b)(1).

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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.

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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). Therefore, the court may 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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Plaintiff alleges that on December 30, 2009, defendants Barton and Probst forced plaintiff

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to move to cell 113 with inmate Washington, aka “BG” or “Baby Gangster,” an alleged Crips

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gang member. Plaintiff claims that following repeated requests to be moved for his protection

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from BG’s threats, plaintiff was assaulted by BG and plaintiff’s nose and ribs were broken.

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Plaintiff claims he was subjected to a false rules violation (“115”) for fighting. Plaintiff alleges

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that on February 5, 2010, BG assaulted plaintiff after plaintiff informed Correctional Officer Silva

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that BG threatened to beat plaintiff up.

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Plaintiff also alleges that on January 22, 2011, he was repeatedly denied a cell move away

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from inmate Smith, and when plaintiff asked defendant Rodriguez to move plaintiff due to inmate

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Smith’s threats, plaintiff alleges that defendant Rodriguez threatened to drag plaintiff out of his

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cell, beat plaintiff, and then throw plaintiff back in the cell. Days later, plaintiff alleges that

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defendant Smith attacked plaintiff from behind and severely beat plaintiff’s head against the

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concrete wall.

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Plaintiff also claims that on January 16, 2013, an inmate Dolihite was induced into

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stabbing plaintiff in the neck. Finally, plaintiff alleges that on March 1, 2013, defendant

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Robinette had two black inmates attack plaintiff, and after plaintiff was beaten, Robinette and

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other guards handcuffed plaintiff and then hit plaintiff over the head with batons, knocking

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plaintiff unconscious. Plaintiff alleges that prison guards at High Desert State Prison (“HDSP”)

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“were on a campaign of acts of violence against [plaintiff] for legal actions [he] was pursuing.”

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(ECF No. 1 at 4.) Plaintiff names as defendants Correctional Officers Rodriguez, Robinette,

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Barton, and Probst.

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First, plaintiff raises factual allegations as to six separate incidents that occurred over a

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four year period at HDSP. Plaintiff is advised that it is not appropriate to raise unrelated claims

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against different defendants in one action; rather, unrelated claims against different defendants
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must be pursued in multiple lawsuits. The controlling principle appears in Fed. R. Civ. P. 18(a):
‘A party asserting a claim . . . may join, [] as independent or as
alternate claims, as many claims . . . as the party has against an
opposing party.’ Thus multiple claims against a single party are
fine, but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2. Unrelated claims against
different defendants belong in different suits, not only to prevent
the sort of morass [a multiple claim, multiple defendant] suit
produce[s], but also to ensure that prisoners pay the required filing
fees-for the Prison Litigation Reform Act limits to 3 the number of
frivolous suits or appeals that any prisoner may file without
prepayment of the required fees. 28 U.S.C. § 1915(g).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied). Therefore, plaintiff must pursue his claims based on separate incidents in separate

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lawsuits. However, the undersigned will address plaintiff’s claims so that plaintiff may decide

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which claim to pursue in this action, and which claims to pursue in separate actions.

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Second, allegations of mere threats are not cognizable. See Gaut v. Sunn, 810 F.2d 923,

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925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor do allegations that

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naked threat was for purpose of denying access to courts compel contrary result). Thus,

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plaintiff’s claims as to defendants Barton and Probst, without more, are insufficient to state a

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cognizable civil rights claim.

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Third, a “prisoner has no constitutionally guaranteed immunity from being wrongly or

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falsely accused of conduct which may result in the deprivation of a protected liberty interest.”

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Lopez v. Celaya, 2008 WL 205256 at *5 (N.D. Cal. Jan. 23, 2008), citing, inter alia, Sprouse v.

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Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Although the filing of a false disciplinary action

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against an inmate is not a per se civil rights violation, there are two ways that allegations that an

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inmate has been subjected to a false claim can state a cognizable civil rights claim. The first is

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when the inmate alleges that the false report was in retaliation for the exercise of a

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constitutionally protected right under the First Amendment. See Hines v. Gomez, 108 F.3d 265

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(9th Cir. 1997) (retaliation claim must rest on proof that defendant filed disciplinary action in

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retaliation for inmate’s exercise of his constitutional rights and that the retaliatory action

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advanced no legitimate penological interest); Newsom v. Norris, 888 F.2d 371, 377 (9th Cir.
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1989). The second is when the inmate is not afforded the procedural due process required by the

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due process clause in connection with the issuance and hearing of disciplinary reports. See

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Newsom, 888 F.2d at 377; see also Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (claim

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that prison guard planted false evidence which resulted in disciplinary infraction fails to state a

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cognizable civil rights claim where procedural due process protections are provided).

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: “(1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of

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harm may be sufficient even if an inmate cannot allege a chilling effect. Id. In order to prevail

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on a retaliation claim, plaintiff must demonstrate that he engaged in protected conduct and that

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retaliation for the exercise of protected conduct was the “substantial” or “motivating” factor

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behind the defendant’s conduct. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th

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Cir. 1989). In the context of a retaliation claim brought by an inmate, the plaintiff must also

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demonstrate an absence of legitimate correctional goals for the conduct he contends was

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retaliatory. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (citing Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985)).

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Plaintiff’s vague allegation that “prison guards” were on a campaign of acts of violence

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against him for legal actions he was pursuing is insufficient to state a cognizable retaliation claim.

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Plaintiff must allege, as to each defendant, specific facts that support each of the five elements

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required under Rhodes, demonstrating that each defendant was aware of plaintiff’s protected

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conduct and that such conduct was the motivating factor in each defendant’s alleged retaliatory

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actions.

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Fourth, plaintiff appears to allege that defendant Rodriguez failed to protect plaintiff in

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violation of the Eighth Amendment. “[P]rison officials have a duty . . . to protect prisoners from

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violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). “Being

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violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their
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offense against society.” Id. at 834 (internal citation omitted). However, prison officials do not

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incur constitutional liability for every injury suffered by a prisoner. Id. A prison official violates

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the Eighth Amendment “only if he knows that inmates face a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. Under this

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standard, a prison official must have a “sufficiently culpable state of mind,” one of deliberate

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indifference to the inmate’s health or safety. Id. at 834. If plaintiff elects to file an amended

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complaint, he must allege facts demonstrating how each defendant’s actions rose to the level of

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“deliberate indifference” to his health and safety. In other words, plaintiff must allege that the

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defendants knew he was at risk of being attacked and explain how the defendants’ response to

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this threat of attack was unreasonable. Plaintiff is cautioned that “prison officials who lacked

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knowledge of a risk cannot be said to have inflicted punishment.” Farmer, 511 U.S. at 844.

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Plaintiff’s allegations against defendant Rodriguez are sufficient to state a potentially

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cognizable failure to protect claim in violation of the Eighth Amendment. However, to the extent

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plaintiff attempts to allege that defendants Barton and Probst failed to protect plaintiff, plaintiff

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failed to provide sufficient factual allegations to demonstrate that each knew plaintiff was at risk

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of being attacked yet disregarded such risk.

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Fifth, plaintiff appears to allege that defendant Robinette used excessive force on March 1,

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2013. The use of excessive force against an inmate violates an inmate’s Eighth Amendment right

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to be free from cruel unusual punishment. Graham v. Connor, 490 U.S. 386, 393-94 (1989). The

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use of force is constitutional if employed to keep or restore order in the prison; it is

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unconstitutional if wielded “maliciously or sadistically for the very purpose of causing harm.”

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). “That is not to say that every malevolent touch

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by a prison guard gives rise to a federal cause of action. The Eighth Amendment’s prohibition of

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‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis

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uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience

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of mankind.’” Hudson v. McMillan, 501 U.S. 1, 9-10 (1992). The Supreme Court has identified

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five factors to consider in determining whether an official’s use of force was sadistic and

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malicious for the purpose of causing harm: (1) extent of the injury; (2) need to use the force;
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(3) relationship between the need to use the force and the amount used; (4) the threat “reasonably

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perceived” by the official; and (5) any efforts made to temper the severity of the force. Id. at 7.

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Based on the facts alleged, it appears that plaintiff can state a potentially cognizable

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excessive force claim against defendant Robinette. However, as set forth above, there are no

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facts demonstrating a connection between defendant Robinette and the other named defendants,

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or the incidents that occurred in 2009 or 2011. Thus, plaintiff’s claims against defendant

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Robinette should be pled in a separate action.

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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court has determined that the complaint does not contain a short and plain statement as required

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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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complaint must be dismissed. The court will, however, grant leave to file an 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 complaint must allege in specific terms how each

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

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

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Board 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 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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Plaintiff may join multiple claims only if they are all against a single defendant. Fed. R.
Civ. P. 18(a).

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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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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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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 Amended Complaint.

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

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

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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Dated: March 13, 2015

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/cran0208.14n

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSEPH CRANE,

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No. 2:15-cv-0208 TLN KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

RODRIGUEZ, 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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Amended Complaint

DATED:
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Plaintiff