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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REAGAN THOMAS, 12 No. 2:15-cv-1936 KJM AC P Plaintiff, 13 v. 14 RAVERA, et al., 15 ORDER Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding 19 was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 21 22 23 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. §§ 24 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 3 1915(b)(2). 4 5 II. Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 13 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 14 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 15 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 16 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 17 has an arguable legal and factual basis. Id. 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 23 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 24 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 25 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 26 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 27 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d 28 ed. 2004)). 2 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 3 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 6 under this standard, the court must accept as true the allegations of the complaint in question, 7 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 8 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 9 McKeithen, 395 U.S. 411, 421 (1969). 10 III. Complaint 11 In the complaint, plaintiff alleges that on December 26, 2014, defendant Rivera 12 unexpectedly opened his cell door without any warning. ECF No. 1 at 5. When the door was 13 opened, plaintiff’s “finger was c[a]ught between the inside door frame and the inside sliding door 14 window frame,” amputating his finger. Id. He further alleges that there is a metal strip installed 15 along the door frame because the unit where he was housed was previously an administrative 16 segregation unit and that the metal strip is “‘hazardous’ and completely ‘dangerous’ to prisoners 17 housed within.” Id. He claims that there are no warnings about the danger the doors pose. Id. at 18 6. Plaintiff asserts that defendant Rivera “purposely and intentionally caused harm and injuries to 19 [him]” and that, as warden, defendant Perry is responsible for plaintiff’s safety and his 20 subordinate’s conduct. Id. 21 IV. Failure to State a Claim 22 A. 23 “The Constitution does not mandate comfortable prisons, but neither does it permit Defendant Rivera 24 inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and 25 citations omitted). “[A] prison official violates the Eighth Amendment only when two 26 requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious; a 27 prison official’s act or omission must result in the denial of the minimal civilized measure of 28 life’s necessities.” Id. at 834 (internal quotation marks and citations omitted). Second, the prison 3 1 official must subjectively have a sufficiently culpable state of mind, “one of deliberate 2 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 3 official is not liable under the Eighth Amendment unless he “knows of and disregards an 4 excessive risk to inmate health or safety; the official must both be aware of facts from which the 5 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 6 inference.” Id. at 837. Then he must fail to take reasonable measures to abate the substantial risk 7 of serious harm. Id. at 847. Mere negligent failure to protect an inmate from harm is not 8 actionable under § 1983. Id. at 835. 9 It is not clear from plaintiff’s complaint that defendant Rivera was aware of the risk to 10 plaintiff’s safety when he opened the cell door. Although plaintiff makes a general accusation 11 that defendant Rivera “purposely and intentionally caused harm and injuries,” there are no facts 12 alleged in the complaint that would indicate that Rivera knew plaintiff’s was at risk for injury. 13 Plaintiff alleges that Rivera opened the cell door, and that the cell doors are operated by the 14 control booth officer. ECF No. 1 at 5. This indicates that Rivera was in the control booth when 15 he opened plaintiff’s cell door, making it unlikely that he was aware that plaintiff’s hand was in a 16 position to be injured by the door. There is nothing in the complaint to demonstrate that the 17 incident, while unfortunate, was anything more than an accident and “[a]n accident, although it 18 may produce added anguish, is not on that basis alone to be characterized as wanton infliction of 19 unnecessary pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); Harding v. City and County of 20 San Francisco, 602 F. App’x 380, 382 (2015) (no constitutional violation when a pretrial 21 detainee’s finger was severed after being accidentally slammed in a door). To the extent plaintiff 22 is alleging that Rivera ignored a substantial risk of serious harm by not announcing that he was 23 opening the door, plaintiff fails to allege any facts that would show Rivera was aware that the 24 type of injury plaintiff suffered was a possible consequence of not announcing the door was being 25 opened. The claims against defendant Rivera will therefore be dismissed with leave to amend. 26 B. 27 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 28 Defendant Perry connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 4 1 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 2 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 3 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 4 Additionally, “[t]here is no respondeat superior liability under section 1983.” Taylor v 5 List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under 6 § 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation, 7 or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 8 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. 9 Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the constitutional 10 violations of his subordinates if he “knew of the violations and failed to act to prevent them.” 11 Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without any personal 12 participation if the official implemented “a policy so deficient that the policy itself is a 13 repudiation of the constitutional rights and is the moving force of the constitutional violation.” 14 Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 15 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 16 To the extent plaintiff appears to be making claims against defendant Perry based solely 17 on his position as warden, he fails to state a claim for relief. Plaintiff must allege some specific 18 action by Perry that violated his rights. It appears that plaintiff may be attempting to allege that 19 Perry was deliberately indifferent to his safety because there were no warning signs about the 20 potential danger the doors posed to inmates. ECF No. 1 at 6. However, nothing in the complaint 21 suggests that Perry was aware of the potential danger or had reason to believe that warning signs 22 were necessary. In order to be deliberately indifferent, plaintiff must allege facts that show that 23 Perry knew of the risk to plaintiff’s health and safety and then ignored the risk. For these reasons, 24 the claims against defendant Perry will be dismissed with leave to amend. 25 V. Leave to Amend 26 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 27 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo, 28 423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant 5 1 is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can 2 be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 3 between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 4 743 (9th Cir. 1978). 5 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 6 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 7 complete in itself without reference to any prior pleading. This is because, as a general rule, an 8 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims 10 dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent 11 amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the 12 original complaint no longer serves any function in the case. Therefore, in an amended 13 complaint, as in an original complaint, each claim and the involvement of each defendant must be 14 sufficiently alleged. 15 VI. Summary 16 Plaintiff’s request to proceed in forma pauperis is granted. 17 The complaint is dismissed with leave to amend because the facts plaintiff has alleged are 18 not enough to state a claim for relief. If plaintiff wants to state claims against defendants Rivera 19 and Perry, he needs to include facts that show that defendants were each aware of the risk to his 20 safety and ignored it. For example, if defendant Rivera saw that plaintiff’s hand would be caught 21 by the door or if similar incidents occurred or there were complaints about the doors before 22 plaintiff was injured, plaintiff should include these facts in his complaint. 23 If plaintiff chooses to amend his complaint, the first amended complaint must include all 24 of the claims plaintiff wants to make because the court will not look at the claims or information 25 in the original complaint. In other words, any claims not in the first amended complaint will not 26 be considered. 27 In accordance with the above, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 6 1 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 2 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 3 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 4 Director of the California Department of Corrections and Rehabilitation filed concurrently 5 herewith. 6 3. Plaintiff’s complaint is dismissed with leave to amend. 7 4. Within thirty days from the date of service of this order, plaintiff may file an amended 8 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 9 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 10 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 11 original and two copies of the amended complaint. Failure to file an amended complaint in 12 accordance with this order will result in dismissal of this action. 13 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 14 form used in this district. 15 DATED: January 5, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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