Brown v. Rafferty

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 09/22/16 granting 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. Plaintiff's complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAMION BROWN,

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No. 2:16-cv-1873 CKD P

Plaintiff,
v.

ORDER

C/O W. RAFFERTY,

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Defendant.

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I. Introduction
Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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II. Screening Standard

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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III. Discussion

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A. Allegations

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Plaintiff names one defendant: a correctional officer, Rafferty, at California State Prison-

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Solano. Plaintiff alleges that on September 9, 2015, he was fighting with another inmate when

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Rafferty shot him in the head from 60 feet away with a 40 mm launcher, or block gun. (ECF No.

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1 at 10-11.) Rafferty fired several rounds, hitting both inmates in the head. (Id. at 18.) Other

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correctional officers tossed tear gas grenades near the two inmates, and they were placed in

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restraints and escorted to the medical facility. (Id.) Plaintiff was in extreme pain, passed out, and

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woke up in an ambulance. (Id.) He was admitted to a hospital the day of the incident and

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discharged two days later. (Id. at 19-20.) At the hospital, he underwent an M.R.I. and several

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CAT scans. (Id. at 20.)

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Back in prison, plaintiff was placed in Administrative Segregation and denied a pillow,

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despite the recent injury to his head. (Id. at 20-21.) In the weeks that followed, plaintiff suffered

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from vertigo, pain, and sleep deprivation. (Id. at 21-22.) On November 3, 2015, he was placed

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on psychiatric medication for post-traumatic stress disorder. (Id. at 22.)

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Plaintiff claims that defendant Rafferty used excessive force against him in violation of

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the Eighth Amendment.

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B. Excessive Force

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The Eighth Amendment prohibits cruel and unusual punishment. “[T]he unnecessary and

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wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth

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Amendment.” Whitely v. Albers, 475 U.S. 312, 319 (1986). “The Eighth Amendment’s

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prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition

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de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (quoting Hudson v.

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McMillian, 503 U.S. 1, 9 (1992)) (internal quotations omitted).

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Not every malevolent touch by a prison guard gives rise to a federal cause of action.

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Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). In

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determining whether the use of force was wanton and unnecessary, courts may evaluate the extent
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of the prisoner’s injury, the need for application of force, the relationship between that need and

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the amount of force used, the threat reasonably perceived by the responsible officials, and any

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efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (quotation

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marks and citations omitted). While the absence of a serious injury is relevant to the Eighth

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Amendment inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of

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force to cause harm always violates contemporary standards of decency. Wilkins, 559 U.S. at 37

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(quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Thus, it is the use of force rather than

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the resulting injury which ultimately counts. Id. at 1178. Mere negligence is not actionable under

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§1983 in the prison context. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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Here, plaintiff has not stated an excessive force claim against defendant, as the complaint

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does not suggest the malicious or sadistic use of force. Rather, it appears defendant was using

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force to break up an inmate fight, such that the amount of force may have been reasonable under

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the circumstances. While plaintiff’s description of the event is clear and specific, he does not

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explain why defendant’s use of force was “wanton and unnecessary” in violation of the Eighth

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Amendment. Thus, the complaint will be dismissed for failure to state a claim. However,

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plaintiff will have the opportunity to amend the complaint.

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C. Medical Indifference

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Denial or delay of medical care for a prisoner’s serious medical needs may constitute a

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violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

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97, 104-05 (1976). An individual is liable for such a violation only when the individual is

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deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).

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In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439

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F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other

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grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the

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plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton infliction of
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pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d

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at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.

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Second, the plaintiff must show the defendant’s response to the need was deliberately

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indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act

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or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

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indifference. Id. Under this standard, the prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but that person

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“must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

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approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A

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showing of merely negligent medical care is not enough to establish a constitutional violation.

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Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106.

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A difference of opinion about the proper course of treatment is not deliberate indifference,

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nor does a dispute between a prisoner and prison officials over the necessity for or extent of

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medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d

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1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Plaintiff does not name any medical defendants or assert an Eighth Amendment medical

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claim. However, to the extent he alleges that his medical care after returning from the hospital

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was inadequate to treat his pain or other symptoms, plaintiff may amend the complaint in light of

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the above standard.

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IV. Leave to Amend

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in

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specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the
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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in dismissal of this action.

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Dated: September 22, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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