Cervantes v. Salazar

Filing 5

ORDER signed by Magistrate Judge Craig M. Kellison on 4/20/17 ordering 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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SALVADOR CERVANTES, 12 13 14 15 16 17 18 19 No. 2:15-cv-2686-CMK-P Plaintiff, vs. ORDER SALAZAR Defendant. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 25 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 26 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1 1 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 2 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 3 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 4 with at least some degree of particularity overt acts by specific defendants which support the 5 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 11 12 13 14 15 Plaintiff’s statement of his claim consists of one paragraph in his complaint as follows: I claim correctional sergeant Salazar on 5-22-15 used excessive use of force. I was hand cuffed and didn’t pose a threat to him. I had medical and safety concerns. I received a injury to my head and cut to my chin, which need sti[t]ches. He also refused to give back my eye glasses. (Compl., Doc. 1 at 3). 16 17 18 II. DISCUSSION As stated above, plaintiff must allege with at least some degree of particularity 19 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 20 to satisfy the basic pleading standard. In order to avoid dismissal for failure to state a claim a 21 complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic 22 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 23 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 24 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 25 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. See 26 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 2 1 content that allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 3 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 4 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to 5 the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 6 The court finds the allegations in plaintiff’s complaint so vague and conclusory 7 that it fails to state a claim upon which relief can be granted. Although the Federal Rules of Civil 8 Procedure adopt a flexible pleading policy, a complaint must give fair notice and state the 9 elements of the claim plainly and succinctly. See Jones v. Community Redev. Agency, 733 F.2d 10 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt 11 acts which defendants engaged in that support plaintiff’s claim. See id. Plaintiff’s complaint fails 12 to allege any specific acts, only the vague conclusory allegation that the defendant used excessive 13 force. The complaint must be dismissed, but plaintiff will be grant leave to file an amended 14 complaint. 15 The treatment a prisoner receives in prison and the conditions under which the 16 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 17 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 18 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of 19 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 20 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 21 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 22 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 23 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 24 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 25 such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 26 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 3 1 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 2 official must have a “sufficiently culpable mind.” See id. 3 When prison officials stand accused of using excessive force, the core judicial 4 inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or 5 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 6 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as 7 opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, 8 is applied to excessive force claims because prison officials generally do not have time to reflect 9 on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 10 U.S. at 320-21. In determining whether force was excessive, the court considers the following 11 factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship 12 between the need for force and the amount of force used; (4) the nature of the threat reasonably 13 perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. 14 See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force 15 was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 16 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, 17 because the use of force relates to the prison’s legitimate penological interest in maintaining 18 security and order, the court must be deferential to the conduct of prison officials. See Whitley, 19 475 U.S. at 321-22. 20 However, not “every malevolent touch by a prison guard gives rise to a federal 21 cause of action.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Johnson v. Glick, 481 F.2d 22 1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary in 23 the peace of a judge’s chambers, violates a prisoner’s constitutional rights”)). De minimis uses of 24 physical force are not necessarily in violation of the Eighth Amendment, “provided that the use 25 of force is not of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (citing Whitley, 26 475 U.S. at 327 ((quoting Estelle, 429 U.S. at 106) (internal quotation marks omitted))). Thus, 4 1 something more than a de minimis use of force is generally necessary for an Eighth Amended 2 violation. 3 4 III. CONCLUSION 5 Because it is possible that the deficiencies identified in this order may be cured by 6 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire 7 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 8 informed that, as a general rule, an amended complaint supersedes the original complaint. See 9 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 10 amend, all claims alleged in the original complaint which are not alleged in the amended 11 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 12 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 13 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 14 complete in itself without reference to any prior pleading. See id. 15 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 16 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 17 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 18 each named defendant is involved, and must set forth some affirmative link or connection 19 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 20 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Finally, plaintiff is warned that failure to file an amended complaint within the 22 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 23 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 24 with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 25 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 26 /// 5 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file an amended complaint within 30 days of the date of 4 service of this order. 5 6 7 8 DATED: April 20, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6

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