Kononov v. Sacramento County Sheriff Department et al

Filing 18

ORDER signed by Magistrate Judge Craig M. Kellison on 05/12/17 granting 12 Motion to Proceed IFP. Plaintiff's complaint is dismissed with leave to amend. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VITALY V. KONONOV,

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No. 2:15-cv-1324-GEB-CMK

Plaintiff,
vs.

ORDER

SACRAMENTO COUNTY SHERIFF
DEPARTMENT, et al.,

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Defendants.
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/
Plaintiff, proceeding1 pro se, brings this civil rights action pursuant to 42 U.S.C. §

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1983. Pending before the court is plaintiff’s complaint (Doc. 1) and motion to proceed in forma

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pauperis (Doc. 12).

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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that

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plaintiff is unable to prepay fees and costs or give security therefor. His motion2 to proceed in

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forma pauperis will therefore be granted.

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It appears that plaintiff brought this action while incarcerated, but is now no
longer confined.
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As it appears that plaintiff is no longer incarcerated, the requirement under §
1915(a) for providing a trust account statement is no longer necessary.
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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s complaint is confusing and difficult to interpret. He brings this action

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against the Sacramento County Sheriff’s Department, Sacramento County Mail Jail, Scott Jones,

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and John McGinness. Yet, as best as the court can determine, his allegations are against

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individual employees of the Sheriff’s Department. It appears he is claiming police brutality and

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use of excessive force, and that he was harassed by some of the defendants through the denial of

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being allowed into the exercise yard, denial of a shower, denial of day room use, denial of access

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to the commissary, and denial of use of the telephone. He also makes some allegations that one

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of the defendants threw his food at him so he had to go without food for 17 hours.
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Plaintiff has also filed several supplemental declarations attempting to add new
and unrelated claims to this action.

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II. DISCUSSION
Plaintiff’s complaint suffers from a number of defects. First, to state a claim

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under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions

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of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436

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U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the

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

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

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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

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personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual

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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988).

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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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See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

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on an indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. See Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes,

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416 U.S. 232, 236 (1974).

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

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that it fails to state a claim upon which relief can be granted. Although the Federal Rules of Civil

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Procedure 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. See Jones v. Community Redev. Agency, 733 F.2d

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

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acts which defendants engaged in that support plaintiff’s claim. See id. Plaintiff fails to make the

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connection between the acts alleged and who the actor was. Plaintiff’s complaint must be

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dismissed for failure to state a claim. However, plaintiff will be grant leave to file an amended

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complaint.

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As to the specific claims plaintiff attempts to state in his complaint, the standards

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for those the court can decipher will be outlined for plaintiff’s benefit. As discussed below, if

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plaintiff chooses to file an amended complaint, he will be required to set forth with more

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particularity what his claims are.

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A.

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The treatment a prisoner receives in prison and the conditions under which the

Excessive Force

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.
When prison officials stand accused of using excessive force, the core judicial

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inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline,

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or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as

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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

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is applied to excessive force claims because prison officials generally do not have time to reflect

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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

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U.S. at 320-21. In determining whether force was excessive, the court considers the following

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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

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between the need for force and the amount of force used; (4) the nature of the threat reasonably

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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

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because the use of force relates to the prison’s legitimate penological interest in maintaining

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security and order, the court must be deferential to the conduct of prison officials. See Whitley,
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475 U.S. at 321-22.
Here, plaintiff alleges he was extracted from his cell three times, which resulted in

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injury, including fractured ribs. He does not, however, identify who was involved in the cell

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extraction or what was done that amounted to excessive use of force. Such conclusory

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allegations are simply insufficient to state a claim.

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B.

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Adequate food and sanitation are basic human needs protected by the Eighth

Denial of Yard/Showers/Food

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Amendment. Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318

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(9th Cir. 1998) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). However, “only

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those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently

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grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298

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(1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “The Eighth Amendment

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requires only that prisoners receive food that is adequate to maintain health; it need not be tasty

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or aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). Inmates are

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guaranteed sanitation and personal hygiene supplies. See Keenan, 83 F.3d at 1091 (citing

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Hoptowit, 682 F,2d at 1246). Exercise is also a necessity; outdoor exercise can be required when

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inmates are otherwise confined in small cells for almost 24 hours a day. See Spain v. Procunier,

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600 F.2d 189, 199 (9th Cir. 1979). However, temporary unconstitutional conditions of

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confinement do not always rise to the level of constitutional violations. See Anderson v. County

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of Kern, 45 F.3d 1310 (9th Cir. 1995).

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Here, plaintiff fails to provide the court with sufficient information to evaluate

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these claims. To the extent plaintiff alleges he was denied the use of a shower, he fails to

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provide allege such facts as when, how often, and by whom was he denied showers. He fails to

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make similar allegations regarding use of the yard and exercise module. As to the deprivation of

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food, plaintiff alleges two deputies (who are not named as defendants, but perhaps should be)

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threw his midday meal in the toilet or floor for four days. Missing one meal a day for four days,
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while unpleasant, does not appear to rise to the level of an Eighth Amendment violation.

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However, without more, these claims are too vague and conclusory for the court to determine

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whether plaintiff can state a claim for relief.

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C.

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Municipalities and other local government units are among those “persons” to

Municipal Liability

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whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

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Counties and municipal government officials are also “persons” for purposes of § 1983. See id.

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at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local

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government unit, however, may not be held responsible for the acts of its employees or officials

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under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S.

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397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not

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of the actions of its employees or officers. See id. To assert municipal liability, therefore, the

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plaintiff must allege that the constitutional deprivation complained of resulted from a policy or

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custom of the municipality. See id. A claim of municipal liability under § 1983 is sufficient to

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withstand dismissal even if it is based on nothing more than bare allegations that an individual

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defendant’s conduct conformed to official policy, custom, or practice. See Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988).

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Here, plaintiff names both the Sacramento County Sheriff Department and the

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Sacramento County Mail Jail as defendants. However, the only possible liability which can be

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asserted against these two agencies would have to be based on the policy or customs of the

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agencies, which is not alleged. Plaintiff fails to make any allegations related to these two

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agencies.

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D.

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Supervisory personnel are generally not liable under § 1983 for the actions of their

Supervisor Liability

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employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional
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violations of subordinates if the supervisor participated in or directed the violations. See id. The

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Supreme Court has rejected the notion that a supervisory defendant can be liable based on

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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory

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personnel who implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and the moving force behind a constitutional violation may, however, be

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liable even where such personnel do not overtly participate in the offensive act. See Redman v.

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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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Plaintiff names Scott Jones and John McGinness, identified as the Sheriff and the

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Warden, as defendants to this action. However, he again fails to allege any facts related to either

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individual, other that stating their positions. There are no factual allegations that either of these

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defendants were personally involved in of the actions plaintiff complains of.

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IV. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original
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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any prior pleading. See id.

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The Federal Rules of Civil Procedure allow a party to assert “as many claims as it

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has against an opposing party,” but does not provide for unrelated claims against several different

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defendants to be raised on the same action. Fed. R. Civ. Proc. 18(a). “Thus multiple claims

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against a single party are fine, but Claim A against Defendant 1 should not be joined with

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unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in

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different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff’s claims regarding

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the use of force are separate and distinct from the claims relating to the denial of showers, food

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and/or exercise. To the extent plaintiff has attempted to add new claims to this case, or

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supplement the claims alleged in the complaint, filing supplements and/or declarations is not the

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proper means in which to do so. A complaint must be complete in itself and not refer to any

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additional filings. Any amended complaint shall be limited to the claims raised in plaintiff’s

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original complaint. Plaintiff must choose which of his claims to proceed within in this action,

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and shall not add additional unrelated claims or additional unrelated defendants.

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

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a
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defendant’s actions and the claimed deprivation. Vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to proceed in forma pauperis (Doc. 12) is granted;

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Plaintiff’s complaint is dismissed with leave to amend; and

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Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: May 12, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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