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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SALVADOR CERVANTES,

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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

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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 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

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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).

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II. DISCUSSION
As stated above, plaintiff must allege with at least some degree of particularity

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overt acts by specific defendants which support the claims, vague and conclusory allegations fail

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to satisfy the basic pleading standard. In order to avoid dismissal for failure to state a claim a

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complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic

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recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678

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(2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. See

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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, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 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’s complaint fails

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to allege any specific acts, only the vague conclusory allegation that the defendant used excessive

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force. The complaint must be dismissed, but plaintiff will be grant leave to file an amended

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complaint.

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

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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 of

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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.

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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, or

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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.

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However, not “every malevolent touch by a prison guard gives rise to a federal

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cause of action.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Johnson v. Glick, 481 F.2d

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1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary in

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the peace of a judge’s chambers, violates a prisoner’s constitutional rights”)). De minimis uses of

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physical force are not necessarily in violation of the Eighth Amendment, “provided that the use

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of force is not of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (citing Whitley,

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475 U.S. at 327 ((quoting Estelle, 429 U.S. at 106) (internal quotation marks omitted))). Thus,
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something more than a de minimis use of force is generally necessary for an Eighth Amended

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violation.

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III. CONCLUSION

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Because it is possible that the deficiencies identified in this order may be cured by

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

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

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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

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

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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

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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).

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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 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: April 20, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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