Holland v. Palubicki

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/22/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. The complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH E. HOLLAND,

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Plaintiff,

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v.

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E. PALUBICKI,

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No. 2:15-cv-2198-JAM-EFB P

ORDER GRANTING IFP AND DISMISSING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A
Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 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.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Screening Order

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The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that the

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allegations are too vague and conclusory to state a cognizable claim for relief. Plaintiff claims he

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was being held in a cage “due to safety concerns and fears . . . from threats . . . made by another

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inmate” earlier in the day.” ECF No. 1 at 6.1 Defendant Palubicki allegedly “dragged” plaintiff

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from the cage and forced him back on the yard, even though, based on plaintiff’s “reasonable

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assumption,” defendant knew about plaintiff’s safety concerns. Id. at 6-7. Out of fear for his

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safety, plaintiff returned to the Program Office for help. Id. at 7. Defendant then threatened to

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remove plaintiff by force if he did not leave the office. Id. Plaintiff felt he had no choice but to

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return to the yard. Id. According to the complaint, defendant’s “unprofessional and abusively

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aggressive conduct has left [plaintiff] more fearful for [his] life.” Id. Plaintiff adds that

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defendant’s “callous disregard for [his] concerns is unconstitutional, as [he has] a right to

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reasonable security.” Id. Plaintiff also claims that defendant’s “use of force was unwarranted, as

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[plaintiff] posed no threat to his or his staff’s safety and [ ] continued to remain passive as

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[defendant] physically violated [plaintiff’s] right to be free from unnecessary use of force and

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restraint.” Id. Plaintiff seeks $20 million in damages. Id. at 3.

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Plaintiff does not identify any specific claims for relief in the complaint. Under the

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standards governing claims based on excessive force and failure to protect in violation of the

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Eighth Amendment, discussed below, the allegations fail to state a cognizable claim. To proceed,

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plaintiff must file an amended complaint.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection between

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the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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This and subsequent page number citations to plaintiff’s complaint are to the page
number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff.
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(2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Id.

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“When prison officials use excessive force against prisoners, they violate the inmates’

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Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298

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F.3d 898, 903 (9th Cir. 2002). In order to establish a claim for the use of excessive force in

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violation of the Eighth Amendment, a plaintiff must establish that prison officials applied force

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maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore

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discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination, the court

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may evaluate (1) the need for application of force, (2) the relationship between that need and the

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amount of force used, (3) the threat reasonably perceived by the responsible officials, and (4) any

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efforts made to temper the severity of a forceful response. Id. at 7; see also id. at 9-10 (“The

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Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from

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constitutional recognition de minimis uses of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind.” (internal quotation marks and citations

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omitted)).

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Under the Eighth Amendment, “prison 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) (internal

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quotation marks, ellipsis, and citation omitted). However, “not . . . every injury suffered by one

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prisoner at the hands of another . . . translates into constitutional liability for prison officials

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responsible for the victim’s safety.” Id. at 834. A prison official may be held liable for an assault

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suffered by one inmate at the hands of another only where the assaulted inmate can show that the

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injury is sufficiently serious, id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and

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that the prison official was deliberately indifferent to the risk of harm, id. at 837. Thus, the

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relevant inquiry is whether prison officials, “acting with deliberate indifference, exposed a

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prisoner to a sufficiently substantial risk of serious damage to his future health.” Id. at 834

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(internal quotation omitted).

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Plaintiff has not shown that defendant used excessive force when removing plaintiff from

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the cage/Program Office. The allegations do not show more than a de minimis use of force, and

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there are no specific allegations regarding any pain or physical damage resulting from the

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incident. In addition, plaintiff has not shown that defendant was deliberately indifferent to a

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serious risk of harm to plaintiff. Plaintiff does not allege why defendant chose to return him to

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the yard. Though plaintiff assumes that defendant knew that another inmate had threatened him,

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he pleads no facts to support that assumption or to otherwise demonstrate that defendant’s

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conduct amounted to deliberate indifference to a serious risk of harm to plaintiff. It is also not

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clear from plaintiff’s vague and conclusory allegations, what the specific risk of harm to plaintiff

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entailed.
Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant.

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Any amended complaint must not exceed the scope of this order and may not add new,

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unrelated claims. Further, any amended complaint must cure the deficiencies identified above

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and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. Local Rule 110.

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IV.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in a recommendation that this action be

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dismissed for failure to state a claim. If plaintiff files an amended complaint stating a cognizable

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claim the court will proceed with service of process by the United States Marshal.

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DATED: March 22, 2017.

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