Perez v. Beard et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/21/2017 GRANTING plaitniff'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 file an amended complaint 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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ARTHUR RICHARD PEREZ,

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Plaintiff,

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No. 2:16-cv-0073-JAM-EFB P

v.
JEFFREY BEARD, et al.,

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

Defendants.

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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 directed 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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In the complaint (ECF No. 1), plaintiff alleges that defendants Herrera and Dashiel

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transported him in a van without securing his seatbelt. Plaintiff does not allege whether this was

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a deliberate choice by the transporting officers or simply an oversight. Nor does he allege

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whether he was shackled or unable to secure his own seatbelt. Defendant Herrera allegedly

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accelerated and then slammed on the brakes in order to avoid hitting another transportation van,
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driven by defendant Ponce. The sudden stop allegedly caused plaintiff to be thrown to the floor

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and to sustain serious injuries. Plaintiff claims that the transportation officers were racing each

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other to the clinic pursuant to an “underground” policy. See ECF No. 1 ¶ 25 (alleging that the

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transportation officers do not want to arrive last because arriving last requires more paperwork

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and longer shifts). In addition to defendants Dashiel, Herrera, and Ponce, the complaint names

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numerous supervisory officials as defendants. Under the applicable standards discussed below,

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these allegations fail to state a cognizable claim. To proceed, plaintiff must file an amended

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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). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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

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(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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(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. Here, plaintiff improperly attempts to impose liability on

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numerous supervisory defendants.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). To determine whether an Eighth Amendment violation has occurred, a
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court should consider the circumstances, nature and duration of a deprivation of these necessities.

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Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (referring to necessities such as adequate

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shelter, food, clothing, sanitation, medical care, and personal safety). Further, plaintiff must

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allege facts sufficient to support a claim that prison officials knew of and disregarded a

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substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847

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(1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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In some circumstances, the failure to secure an inmate’s seatbelt may amount to a

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constitutional violation. See Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008) (potential Eighth

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Amendment violation where officer knew that prisoner was restrained and could not secure his

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own seatbelt, rejected request for a seatbelt, drove recklessly, and ignored requests to slow down);

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Wilbert v. Quarterman, 647 F. Supp. 2d 760, 769 (S.D. Tex. 2009) (“Considering the different

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circuit court opinions, it appears that an allegation of simply being transported without a seatbelt

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does not, in and of itself, give rise to a constitutional claim. However, if the claim is combined

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with allegations that the driver was driving recklessly, this combination of factors may violate the

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Eighth Amendment.”); Brown v. Saca, No. EDCV 09-01608-ODW, 2010 U.S. Dist. LEXIS

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64964, at *9 (C.D. Cal. June 9, 2010) (“plaintiff’s allegations that Saca and Crispin refused to

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secure his seatbelt are sufficient to state a claim under the Eighth Amendment because he has

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alleged that Saca and Crispin acted recklessly”). However, allegations that a defendant merely

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accompanied an inmate during a transport are not sufficient to state a claim of deliberate

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indifference. See King v. San Joaquin County Sheriff's Dep’t, No. 04-cv1158-GEB-KJM, 2009

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U.S. Dist. LEXIS 123283, at *11 (E.D. Cal. Mar. 4, 2009) (“[A] prison’s or jail’s failure to equip

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a van or bus with seatbelts for the prisoners does not rise to the level of deliberate indifference as

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a matter of constitutional law.”), adopted by 2009 U.S. Dist. LEXIS 28630 (E.D. Cal. Apr. 4,

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2009); Harrington v. Bautista, No. 1:10-cv-01802-LJO-SAB, 2014 U.S. Dist. LEXIS 1623, at *9-

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10 (E.D. Cal. Jan. 6, 2014) (allegations that officers, who merely assisted in transporting plaintiff,

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failed to demonstrate that they knew of and disregarded a substantial risk of serious harm to

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plaintiff).

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For these reasons, the complaint is dismissed with leave to amend. Plaintiff will be

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granted leave to file an amended complaint, if he can allege a cognizable legal theory against a

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proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith,

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203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

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opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

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file an amended complaint, the amended complaint shall clearly set forth the claims and

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allegations against each defendant. Any amended complaint must cure the deficiencies identified

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above 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).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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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. E.D. Cal. 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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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.

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

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed 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

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Amended Complaint.” Failure to comply with this order will result in

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recommendation of dismissal of this action for failure to prosecute.
Dated: March 21, 2017.

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