Thomas v. Ravera, et al.

Filing 14

ORDER signed by Magistrate Judge Allison Claire on 1/5/17 ORDERING that plaintiff's request for leave to proceed in forma pauperis (ECF No. 2 ) is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with leave to amend within 30 days. Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form used in this district.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REAGAN THOMAS,

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No. 2:15-cv-1936 KJM AC P

Plaintiff,

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v.

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RAVERA, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding

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was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I.

Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

1915(a). ECF Nos. 2, 9. 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. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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

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

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison 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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II.

Statutory Screening of Prisoner Complaints
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 where 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). “[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.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,

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has an arguable legal and factual basis. Id.

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

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d

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ed. 2004)).
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

Complaint

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In the complaint, plaintiff alleges that on December 26, 2014, defendant Rivera

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unexpectedly opened his cell door without any warning. ECF No. 1 at 5. When the door was

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opened, plaintiff’s “finger was c[a]ught between the inside door frame and the inside sliding door

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window frame,” amputating his finger. Id. He further alleges that there is a metal strip installed

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along the door frame because the unit where he was housed was previously an administrative

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segregation unit and that the metal strip is “‘hazardous’ and completely ‘dangerous’ to prisoners

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housed within.” Id. He claims that there are no warnings about the danger the doors pose. Id. at

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6. Plaintiff asserts that defendant Rivera “purposely and intentionally caused harm and injuries to

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[him]” and that, as warden, defendant Perry is responsible for plaintiff’s safety and his

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subordinate’s conduct. Id.

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IV.

Failure to State a Claim

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A.

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“The Constitution does not mandate comfortable prisons, but neither does it permit

Defendant Rivera

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inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and

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citations omitted). “[A] prison official violates the Eighth Amendment only when two

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requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious; a

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prison official’s act or omission must result in the denial of the minimal civilized measure of

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life’s necessities.” Id. at 834 (internal quotation marks and citations omitted). Second, the prison
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official must subjectively have a sufficiently culpable state of mind, “one of deliberate

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indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The

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official is not liable under the Eighth Amendment unless he “knows of and disregards an

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excessive risk to inmate health or safety; the official must both be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference.” Id. at 837. Then he must fail to take reasonable measures to abate the substantial risk

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of serious harm. Id. at 847. Mere negligent failure to protect an inmate from harm is not

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actionable under § 1983. Id. at 835.

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It is not clear from plaintiff’s complaint that defendant Rivera was aware of the risk to

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plaintiff’s safety when he opened the cell door. Although plaintiff makes a general accusation

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that defendant Rivera “purposely and intentionally caused harm and injuries,” there are no facts

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alleged in the complaint that would indicate that Rivera knew plaintiff’s was at risk for injury.

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Plaintiff alleges that Rivera opened the cell door, and that the cell doors are operated by the

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control booth officer. ECF No. 1 at 5. This indicates that Rivera was in the control booth when

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he opened plaintiff’s cell door, making it unlikely that he was aware that plaintiff’s hand was in a

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position to be injured by the door. There is nothing in the complaint to demonstrate that the

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incident, while unfortunate, was anything more than an accident and “[a]n accident, although it

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may produce added anguish, is not on that basis alone to be characterized as wanton infliction of

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unnecessary pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); Harding v. City and County of

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San Francisco, 602 F. App’x 380, 382 (2015) (no constitutional violation when a pretrial

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detainee’s finger was severed after being accidentally slammed in a door). To the extent plaintiff

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is alleging that Rivera ignored a substantial risk of serious harm by not announcing that he was

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opening the door, plaintiff fails to allege any facts that would show Rivera was aware that the

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type of injury plaintiff suffered was a possible consequence of not announcing the door was being

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opened. The claims against defendant Rivera will therefore be dismissed with leave to amend.

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B.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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Defendant Perry

connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.
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362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

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Additionally, “[t]here is no respondeat superior liability under section 1983.” Taylor v

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List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under

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§ 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation,

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or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the constitutional

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violations of his subordinates if he “knew of the violations and failed to act to prevent them.”

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Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without any personal

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participation if the official implemented “a policy so deficient that the policy itself is a

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repudiation of the constitutional rights and is the moving force of the constitutional violation.”

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Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations

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marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

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To the extent plaintiff appears to be making claims against defendant Perry based solely

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on his position as warden, he fails to state a claim for relief. Plaintiff must allege some specific

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action by Perry that violated his rights. It appears that plaintiff may be attempting to allege that

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Perry was deliberately indifferent to his safety because there were no warning signs about the

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potential danger the doors posed to inmates. ECF No. 1 at 6. However, nothing in the complaint

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suggests that Perry was aware of the potential danger or had reason to believe that warning signs

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were necessary. In order to be deliberately indifferent, plaintiff must allege facts that show that

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Perry knew of the risk to plaintiff’s health and safety and then ignored the risk. For these reasons,

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the claims against defendant Perry will be dismissed with leave to amend.

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V.

Leave to Amend

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If plaintiff chooses to file a first amended complaint, he must demonstrate how the

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conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

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423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant
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is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can

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be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978).

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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

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his first amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims

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dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent

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amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the

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original complaint no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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VI.

Summary

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

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The complaint is dismissed with leave to amend because the facts plaintiff has alleged are

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not enough to state a claim for relief. If plaintiff wants to state claims against defendants Rivera

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and Perry, he needs to include facts that show that defendants were each aware of the risk to his

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safety and ignored it. For example, if defendant Rivera saw that plaintiff’s hand would be caught

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by the door or if similar incidents occurred or there were complaints about the doors before

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plaintiff was injured, plaintiff should include these facts in his complaint.

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If plaintiff chooses to amend his complaint, the first amended complaint must include all

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of the claims plaintiff wants to make because the court will not look at the claims or information

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in the original complaint. In other words, any claims not in the first amended complaint will not

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be considered.

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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 (ECF No. 2) 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 with leave to amend.

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4. Within thirty days from the date of service of this order, plaintiff may file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an

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original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in dismissal of this action.

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5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district.

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DATED: January 5, 2017

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