Craver v. Moore

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/22/17 granting 4 , 6 Motions to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be paid 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE RAMON CRAVER, 12 13 14 No. 2:17-cv-0303 CKD P Plaintiff, v. ORDER A. MOORE, 15 Defendant. 16 17 18 I. Introduction Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 19 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1). 21 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 2 II. Screening Standard 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 III. Analysis 21 Plaintiff alleges that after he cursed and yelled at officials at a classification hearing, 22 telling them he would kill any inmate double-celled with him, defendant Moore slammed him 23 against the door and then to the floor, giving him a bloody lip. Plaintiff claims Moore used 24 excessive force in violation of the Eighth Amendment. (ECF No. 1.) 25 Not every malevolent touch by a prison guard gives rise to a federal cause of action. 26 Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). In 27 determining whether the use of force was wanton and unnecessary, courts may evaluate the extent 28 of the prisoner’s injury, the need for application of force, the relationship between that need and 2 1 the amount of force used, the threat reasonably perceived by the responsible officials, and any 2 efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (quotation 3 marks and citations omitted). While the absence of a serious injury is relevant to the Eighth 4 Amendment inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of 5 force to cause harm always violates contemporary standards of decency. Wilkins, 559 U.S. at 37 6 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Thus, it is the use of force rather than 7 the resulting injury which ultimately counts. Id. at 1178. Mere negligence is not actionable under 8 §1983 in the prison context. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 9 Here, plaintiff has not stated an excessive force claim, as he admits he was agitated and 10 threatening violence when Moore acted. While the amount of force used may have been 11 negligent, the circumstances do not suggest the use of force was malicious or sadistic. 12 As it fails to state a claim, plaintiff’s complaint must be dismissed. However, the court 13 will grant leave to file an amended complaint. While plaintiff will be given the opportunity to 14 amend, it is not for the purpose of adding new claims. See George v. Smith, 507 F.3d 605, 607 15 (7th Cir. 2007). If plaintiff chooses to amend the complaint, he should carefully read this 16 screening order and focus his efforts on curing the deficiencies set forth above. 17 IV. Leave to Amend 18 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 19 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 20 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in 21 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 22 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 23 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 24 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 25 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 27 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. This is because, as a 3 1 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 2 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 3 longer serves any function in the case. Therefore, in an amended complaint, as in an original 4 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 8 shall be collected and paid in accordance with this court’s order to the Director of the California 9 Department of Corrections and Rehabilitation filed concurrently herewith. 10 3. Plaintiff’s complaint is dismissed for failure to state a claim; 11 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 12 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 13 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 14 assigned this case and must be labeled “Amended Complaint”; failure to file an amended 15 complaint in accordance with this order will result in a recommendation that this action be 16 dismissed. 17 Dated: March 22, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 2 / 23 24 25 26 27 28 4

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