Troung v. Gunderson et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/4/2017 GRANTING 10 Motion to Proceed IFP; DENYING AS MOOT 5 and 7 Applications to Proceed IFP; and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOANG TROUNG,

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Plaintiff,

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No. 2:16-cv-1272-JAM-EFB P

v.
S. GUNDERSON, et al.,

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ORDER GRANTING IFP AND SCREENING
COMPLAINT 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 has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application (ECF No. 10) makes the showing required by 28 U.S.C.

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§ 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody

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of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth

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in 28 U.S.C. § 1915(b)(1) and (2). He has also filed two redundant applications (ECF Nos. 5&7)

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which will be denied as moot.

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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, 1 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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Plaintiff has filed three complaints in this action. ECF Nos 1, 4, & 6. In screening this
action, the court looks exclusively to the most recent Second Amended Complaint (ECF No. 6).
See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989)
(holding that an amended pleading supersedes the original).
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III.

Screening Order
The complaint (ECF No. 6) names S. Gunderson, S. Castellon, L. Fetzer, and Cody James

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Phelps as defendants and alleges that they violated plaintiff’s constitutional rights. According to

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the complaint, plaintiff was being transported by bus from California State Prison Sacramento to

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California Men’s Colony- San Luis Obispo on February 6, 2013. Id. at 4. Gunderson was the

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transportation supervisor, Castellon was driving the bus, and Fetzer was sitting in the rear area of

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the bus with a firearm. Id. Plaintiff alleges that, while the bus was headed southbound on the

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freeway, Castellon began driving recklessly. Id. The inmates allegedly urged him to slow down,

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but were ignored and told to be quiet. Id. Plaintiff alleges that he was shackled and the

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correctional officers knew that he had no seatbelt. Id.
Shortly thereafter, defendant Cody James Phelps, who was also travelling southbound,

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lost control of his vehicle while trying to pass the prison bus. Id. at 5. His vehicle struck the rear

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tires of the bus, causing plaintiff to be tossed from his seat and into the adjacent wall. Id.

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Plaintiff claims that he suffered injuries to his face, neck, and back as a result of the crash. Id.

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Afterwards, defendants Gunderson, Castellon, and Fetzer asked if any inmates needed medical

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attention and coordinated the transport of injured inmates to nearby facilities. Id. Now, plaintiff

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alleges that the defendant correctional officers were deliberately indifferent by driving recklessly

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and failing to provide him with a seatbelt. Id. at 5-6. He also alleges that defendant Phelps

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violated his rights by driving recklessly and causing the accident. Id. at 6. As set forth below, the

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allegations fail to state a cognizable claim under the applicable standards.

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First, defendant Phelps is not a state actor and must be dismissed on this basis. To state a

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viable claim under § 1983 the defendant must act under color of state law. Gibson v. United

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States, 781 F.2d 1334, 1338 (9th Cir. 1986). A private individual is liable under § 1983 only if he

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conspires or enters into a joint action with a state actor. Radcliffe v. Rainbow Constr. Co., 254

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F.3d 772, 783 (9th Cir. 2001). There is no indication that defendant Phelps acted in concert with

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any state official.

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Plaintiff’s claims against defendants Gunderson, Castellon, and Fetzer must also be
dismissed. First, it is well settled that the failure to provide seatbelts in a prison vehicle “does
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not, standing alone, violate the Eighth or Fourteenth Amendments.” Jabbar v. Fischer, 683 F.3d

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54, 57 (2d Cir. 2012). Second, plaintiff has not alleged sufficient facts to establish that defendant

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Castellon’s reckless driving was the cause of any of his injuries. The complaint explicitly states

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that the accident was caused by defendant Phelps’ attempt to pass the bus and the loss of control

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of his vehicle during this maneuver. ECF No. 6 at 5. Plaintiff alleges that “[d]efendant Cody

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James Phelps reckless driving caused and resulted in the crash against the CDCR Departmental

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Transport Bus . . .” Id. The complaint does not allege that defendant Castellon’s own reckless

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driving contributed to or worsened that accident in any way. Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978) (“A person subjects another to the deprivation of a constitutional right, within

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the meaning of section 1983, if he does an affirmative act, participates in another's affirmative

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acts, or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.”) (internal quotations omitted) (emphasis added).

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Plaintiff does go on to make the conclusory allegation that Castellon’s reckless driving

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resulted in a crash against another vehicle on the freeway. ECF No. 6 at 5. Plaintiff has failed to

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provide any details regarding this crash. He does not, for instance, allege: (1) how Castellon’s

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reckless driving contributed to that crash; (2) how (if at all) this crash was related to the first

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accident involving Phelps; (3) when this crash occurred; or (4) the basic circumstances of the

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crash, i.e. whether the bus struck the second car or vice versa, whether Castellon had a reasonable

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opportunity to avoid or lessen the impact of the second crash, what (if any) actions the other

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defendants undertook at the time of the second crash, etc. Plaintiff appears to be alleging that the

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first crash involving Phelps instigated the second crash which, in turn, was made worse due to

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Castellon’s driving. The court will not interpret a plaintiff’s complaint by substituting facts that

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are not present, however. He may address these deficiencies in his amended complaint.

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IV.

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Leave to Amend
Plaintiff will be granted leave to file an amended complaint, affording him an opportunity

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

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that 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. Any amended complaint

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must cure the deficiencies identified 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. L.R. 110.

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V.

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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 Nos. 10) is granted and his

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other applications to proceed in forma pauperis (ECF Nos. 5 &7 ) are denied as

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moot.

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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 complaint

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

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

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: October 4, 2017.

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