Green v. Chavez et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/18/2016 GRANTING plaintiff's 7 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's 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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CEDRIC EUGENE GREEN,

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No. 2:16-cv-2163 WBS CKD P

Plaintiff,
v.

ORDER

A. CHAVEZ, et al.,

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Defendants.

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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
Plaintiff alleges that, on July 25, 2015, he was on suicide watch at California Health Care

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Facility after a suicide attempt four days earlier. Defendant Chavez, a correctional officer,

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stopped at plaintiff’s cell door, made a hanging gesture, and stated, “Next time we [staff] won’t

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come in [to your cell] and you can finish the job [of killing yourself].” (ECF No. 1 at 4.)

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Plaintiff was distraught and made another suicide attempt that day. Defendants Artis, Voong,

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Brown and Duffy reviewed plaintiff’s administrative appeals about this incident, determining at

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the final level of review that Chavez did not violate policy. Plaintiff names the California

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Department of Corrections and Rehabilitation as the sixth defendant. He claims that defendants

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violated his Eighth Amendment right to be free of cruel and unusual punishment.
The Eighth Amendment’s prohibition of cruel and unusual punishment requires that

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prison officials take reasonable measures for the safety of inmates See Farmer v. Brennan, 511

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U.S. 825, 834 (1994). A prison official violates the Eighth Amendment only when two

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requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the

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official is, subjectively, deliberately indifferent to the inmate’s safety. See id. “[O]nly those

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deprivations denying ‘the minimal civilized measure of life's necessities,’ are sufficiently grave to

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form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991)

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(citation omitted). “The inmate must then make a subjective showing that the deprivation

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occurred with deliberate indifference to the inmate’s health or safety.” Patterson v. County of

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San Diego, 2010 WL 3957398 *3 (S.D. Cal., 2010) (quoting Farmer, 511 U.S. at 834).

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Mere verbal harassment or abuse does not violate the Constitution and, thus, does not give

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rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139

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(9th Cir. 1987). See Clifton v. Sprague, 2014 WL 5456527, **1-3 (C.D. Cal. Oct. 27, 2014)

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(prisoner failed to state a claim against nurse who allegedly told him he would be better off dead

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and encouraged him to commit suicide) (collecting cases). Thus plaintiff fails to state an Eighth

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Amendment claim against defendant Chavez.

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As to the defendants who reviewed plaintiff’s administrative appeals, inmates have no
Constitutional right to a specific prison grievance procedure. See Ramirez v. Galaza, 334 F.3d
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850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also

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McCoy v. Roe, 509 Fed. Appx. 660, 660 (9th Cir. Feb.19, 2013) (affirming dismissal of claims

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arising from defendants’ handling of prisoner’s grievances) (citing Ramirez). Nor does plaintiff

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state an Eighth Amendment claim on the basis of defendants’ administrative review. Thus

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plaintiff fails to state a claim against these defendants.

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Finally, defendant CDCR is immune from suit under the doctrine of sovereign immunity.

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The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against

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a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan,

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440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v. Hayakawa,

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682 F.2d 1344, 1349-50 (9th Cir. 1982). The State of California has not consented to suit. Thus

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any claims against this defendant must be dismissed.

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For these reasons, the complaint will be dismissed for failure to state a claim. However,

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plaintiff will have the opportunity to file an amended complaint.

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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 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: October 18, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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