Davis v. Wheeler et al

Filing 22

ORDER signed by Magistrate Judge Dennis M. Cota on 9/4/2019 ORDERING Plaintiff may file a second amended complaint within 30 days of the date of service of this order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DAVIS,

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Plaintiff,

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No. 2:16-CV-2917-TLN-DMC-P

v.

ORDER

Z. WHEELER, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint (ECF No. 19).

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Plaintiff alleges Defendants violated his rights under the First Amendment and Eighth

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Amendment.

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I. SCREENING REQUIREMENT AND STANDARD

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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).
The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[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. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS

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Plaintiff names the following as defendants: (1) Z. Wheeler (2) N. Romney (3)

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Scott Kernan (4) D. Baughman. See ECF No. 19, at 2. Plaintiff raises two claims. First, Plaintiff

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alleges Defendants Z. Wheeler and N. Romney retaliated against him, in violation of his First

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Amendment rights, by threatening Plaintiff with physical violence because he is a patient of the

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Enhance Out Patient Program (“EOP”) and because he attempted to reach out for help when

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having suicidal ideations. Id. at 17. Second, Plaintiff alleges Defendants Z. Wheeler and N.

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Romney violated his Eighth Amendment rights by using excessive force, despite Plaintiff

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allegedly not violating any prison rules or acting disruptively at the time. Id. Plaintiff claims

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while Defendants Z. Wheeler and N. Romney escorted him to a medical triage treatment area, he

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was verbally harassed, taunted, and ridiculed by both Defendants. Id. at 3. Plaintiff alleges

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Defendants, in order to prove a point, twice threw Plaintiff face first into the pavement, twisting

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and jumping on Plaintiff’s back, wrist, and left shoulder. Id. Plaintiff alleges he was handcuffed

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and in leg restraints and did not jerk, yank, or pose any threat to the officers. Id. at 4. Plaintiff

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states he was immediately treated by emergency room staff for wounds to both of his wrists and

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abrasions to his left shoulder. Id. Plaintiff does not specifically address Defendants Scott Kernan

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and D. Baughman in the complaint.

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III. DISCUSSION

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As currently set forth, this Court finds Plaintiff alleges sufficient facts in his

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Eighth Amendment claim to pass screening. However, Plaintiff’s First Amendment claim fails

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because it is unclear to the Court whether Plaintiff is alleging retaliation for being an EOP

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member and needing mental health care, or if Plaintiff alleges a violation of the Americans with

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Disabilities Act (“ADA”). Plaintiff’s claims against Defendants Scott Kernan and D. Baughman

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fail to meet the pleading standard under Federal Rule of Civil Procedure Rule 8, as Plaintiff fails

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to specify which Defendant engaged in conduct that lead to an alleged constitutional violation.

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A.

Claims Against Defendants Scott Kernan and D. Baughman

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1. Causal Link

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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations. See

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of

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§ 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Here, Plaintiff failed to specifically name or address Defendants Scott Kernan and

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D. Baughman in the complaint, and Plaintiff does not allege facts to establish how these

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defendants’ personal conduct violated Plaintiff’s constitutional or statutory rights. Because

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Plaintiff fails to allege any facts indicating how Defendants Scott Kernan and D. Baughman

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engaged in the alleged unconstitutional action, Plaintiff has failed to satisfy the Rule 8 pleading

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standard. Further, because Plaintiff failed to attribute any of the alleged unconstitutional conduct

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to either Scott Kernan and D. Baughman, this Court is unable to engage in a substantive analysis

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to determine if sufficient facts exist to support a claim. Plaintiff will be provided an opportunity

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to amend the complaint to set forth specific facts as to Defendants Scott Kernan and D.

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Baughman demonstrating what each Defendant did and how that action or inaction violated

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Plaintiff’s constitutional rights.

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2.

Supervisory Liability

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Further, the Court observes Defendants Scott Kernan and D. Baughman hold

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supervisory positions. Supervisory personnel are generally not liable under § 1983 for the actions

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of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is

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no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

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violations of subordinates if the supervisor participated in or directed the violations. See id. The

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Supreme Court has rejected the notion that a supervisory defendant can be liable based on

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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory

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personnel who implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and the moving force behind a constitutional violation may, however, be

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liable even where such personnel do not overtly participate in the offensive act. See Redman v.

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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in

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civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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Here, Plaintiff appears to allege Defendants Scott Kernan and D. Baughman are

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liable as supervisory personnel, asserting that as supervisors, these Defendants are liable for the

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conduct of their subordinates. This is a respondeat superior theory of liability which is not

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cognizable under § 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff is

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advised that in amending the complaint it is necessary to allege that, through the individual

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supervisors’ action or inaction, Plaintiff’s constitutional rights were violated.

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B.

Claims Against Defendants Z. Wheeler and N. Romney

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1. First Amendment – Retaliation

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In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

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establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

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action was not related to a legitimate penological purpose, such as preserving institutional

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security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

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this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

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exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

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Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

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show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

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the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also

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Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

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establish the following in order to state a claim for retaliation: (1) prison officials took adverse

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action against the inmate; (2) the adverse action was taken because the inmate engaged in

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protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

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adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

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alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

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that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

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example, the court cited Pratt in which a retaliation claim had been decided without discussing

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chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

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discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

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penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly

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stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

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action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

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Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

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which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

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chilling effect element is essentially subsumed by adverse action.
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As currently set forth, this claim cannot pass screening because it is unclear if

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Plaintiff is alleging Defendants Z. Wheeler and N. Romany retaliated against him because he is in

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the EOP program and because he was seeking mental health care, or if Plaintiff is attempting to

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allege Defendants discriminated against him because of a mental disability that causes suicidal

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ideations. If Plaintiff intends the former, then the claim in its current state cannot pass screening

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because being a member of the EOP and attempting to access mental health care is not

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constitutionally protected conduct.

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However, if Plaintiff intends the latter claim, then Plaintiff seeks to bring a claim
under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Title II of the

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ADA “prohibit[s] discrimination on the basis of disability.” See Lovell v. Chandler, 202 F.3d

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1039, 1052 (9th Cir. 2002). “To establish a violation of Title II of the ADA, a plaintiff must

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show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from

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participation in or otherwise discriminated against with regard to a public entity’s services,

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programs, or activities; and (3) such exclusion or discrimination was by reason of [his]

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disability.” Id. Because Plaintiff has not plead facts that establish he is a qualified individual

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with a disability under the ADA, this claim in its current state cannot pass the screening stage.

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Plaintiff will be provided an opportunity to amend the complaint to set forth specific facts as to

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the exact claim he is asserting.

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2. Eighth Amendment – Excessive Force

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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

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of 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 when
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two requirements are met: (1) objectively, the official’s act or omission must be so serious such

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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,

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or 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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Here, Plaintiff alleges he was twice thrown face-first to the ground by Defendants

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Z. Wheeler and N. Romany. Plaintiff alleges while he was handcuffed and in leg restraints, both

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Defendants twisted and jumped on his back, wrist, and left shoulder, and his body was dug into

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the pavement. Plaintiff claims at the time he was not violating any prison rules, he was not acting

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disruptively, and that he did not jerk, yank, or pose any threat to cause the alleged excessive

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force. Further, Plaintiff claims he was immediately treated by emergency room staff for wounds
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to both of his wrists and abrasions to his left shoulder. The complaint pleads sufficient facts

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related to the excessive force claim to proceed past the screening stage.

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IV. CONCLUSION
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. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the

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prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be 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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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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Accordingly, IT IS HEREBY ORDERED that plaintiff may file a second amended
complaint within 30 days of the date of service of this order.

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Dated: September 4, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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