Wolinski v. Lewis et al

Filing 64

ORDER signed by Magistrate Judge Allison Claire on 4/12/2021 ORDERING 24 Amended Complaint has been screened and found to not state a claim for relief; ORDERING Plaintiff may file an amended complaint within 30 days from the date of service of this order; and GRANTING 62 Motion for Clarification to the extent that responsive information has been provided in this order and is otherwise denied. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSZTOF F. WOLINSKI,

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No. 2:17-cv-0583 MCE AC P

Plaintiff,

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v.

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J. LEWIS, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983. The

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action was removed from state court and thereafter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Plaintiff’s First Amended Complaint (“FAC”), ECF No. 24, is before the court for

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screening.

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I.

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SCREENING REQUIREMENT
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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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II.

FIRST AMENDED COMPLAINT
Plaintiff, an inmate housed at California Health Care Facility (“CHCF”), names as

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defendants J. Lewis, J. Porras, D. Brown, R. Ward, M. Gomez, R. Singh, J. Cheeseman, D.

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Celaya, B. Barrett, A. Lopez, Constancio, W. Golsch, R. Longshore, and J. Penaflorida. ECF No.

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24 at 2-4. The FAC does not identify discrete causes of action, but consists of an omnibus factual

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narrative followed by a single run-on sentence identifying plaintiff’s legal claims as “malicious

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battery assault, beating,” denial of rights to 602 appeals process, indifference to medical needs,

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and unsafe conditions. ECF No. 24 at 4-8 (facts), 9, ¶ 22 (legal claims). The complaint

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elsewhere refers to retaliation for complaints. The factual narrative involves several incidents

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without providing dates or explaining how the evens are related.

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The FAC alleges as follows. Plaintiff is an “ADA patient with mobility impairment.” Id.

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at 6. He was sadistically assaulted twice within several minutes and without penological

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justification. See id. at 4-5. He was denied his special diet breakfast after being denied his
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medication because he had filed a verbal complaint with a “supervising psych tech” who had

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ignored the entire situation that had led to the denials of his basic human needs. See id. at 5.

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Plaintiff was assaulted by unspecified persons on an unspecified date while restrained and

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on the ground. See ECF No. 24 at 5-6. The assault left him with great bodily injury and severe

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internal bleeding, and he has been crippled for life. See id. at 5-6. On an unspecified date three

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“P.T.’s”1 threw plaintiff out of his chair and assaulted him for no justifiable reason. See id. at 6.

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It is unclear whether these assaults are two separate incidents. It is also unclear which defendants

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were involved.

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The FAC continues in a rambling fashion, broadly alleging improper application of prison

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rules and procedures, improper reporting of incidents, forged reports, indifference, a cover up,

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theft of health care appliances, retaliation for reporting staff conduct and the like. See generally

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ECF No. 24 at 6-8. Plaintiff claims that this case “would never endde in the Court if NOT for

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malicious OUTRAGEOUS and Deliberate Denial of rights by J.Lewis, and “C.D.W.” J.Porras

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who was in charge and has Authority to Correct al wrongs but choose to Ignored these Ongoing

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Abuse of Authority & Power.” See id. at 8 (errors in original).

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III.

DISCUSSION

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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Here, plaintiff has not provided sufficient factual matter to permit evaluation whether the
incidents at issue support any claim(s) for relief under § 1983 against any particular defendant.
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Given the other allegations, the court presumes that “P.T.” means “psych tech.” If this is not
the case, plaintiff is to state as much in his amended complaint.
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Accordingly, the FAC is not suitable for service. Plaintiff will be provided an opportunity to

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amend.

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IV. LEAVE TO AMEND

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If plaintiff chooses to file an amended complaint, it will take the place of the instant

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complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (stating amended

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complaint supersedes original complaint). Any amended complaint must be written or typed so

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that it is complete in itself without reference to any earlier filed complaint. See E.D. Cal. L.R.

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220. This is because an amended complaint supersedes any earlier filed complaint, and once an

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amended complaint is filed, the earlier filed complaint no longer serves any function in the case.

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See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the

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original, the latter being treated thereafter as non-existent.”), overruled on other grounds by Lacey

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v. Maricopa Cty., 693 F.3d 896 (2012).

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Plaintiff is provided the following information to assist him in amending the complaint.

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A. Pleading Generally

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Under the Federal Rules of Civil Procedure, a complaint must contain a “short and plain

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statement” showing that plaintiff is entitled to relief—that is, who harmed the plaintiff, and in

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what way. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and

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directly. Fed. R. Civ. P. 8(d)(1). That means clearly explaining who did what, when, and how

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each defendant’s actions caused plaintiff harm. Plaintiff may bring claims against multiple

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defendants only if the claims (1) arise out of the same transaction or occurrence or series of

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transactions or occurrences, and (2) there are common questions of law or fact. Fed. R. Civ. P.

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20(a)(2)(A)-(B); see Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997).

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Under Section 1983, a plaintiff must demonstrate how each defendant personally

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participated in the deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). There must be an actual connection or link between the actions of the defendants and the

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deprivation alleged to have been suffered by plaintiff. See Ortez v. Washington County, State of

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Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989).
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Government officials may not be held liable for the actions of their subordinates under a

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theory of respondeat superior. Iqbal, 556 U.S. at 676. Since a government official cannot be held

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liable under a theory of vicarious liability in Section 1983 actions, plaintiff must plead sufficient

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facts showing that the official has violated the Constitution through his own individual actions by

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linking each named defendant with some affirmative act or omission that demonstrates a violation

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of plaintiff’s federal rights. Iqbal, 556 U.S. at 676.

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B. Pleading Specific Constitutional Violations

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To state a claim for excessive force in violation of the Eighth Amendment, an inmate must

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allege specific facts showing that force was applied “maliciously and sadistically to cause harm,”

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rather than “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 503

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U.S. 1, 6-7 (1992). It is not enough for plaintiff to describe the incident in those terms; he must

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explain plainly what happened, including facts that demonstrate malice and intent to cause harm.

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To state a claim for unsafe conditions in violation of the Eighth Amendment, plaintiff

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must state facts demonstrating that specific defendants were aware of an excessive risk to

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plaintiff’s safety, and deliberately ignored it. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).

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To state an Eighth Amendment claim related to medical needs, plaintiff must allege facts

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showing that he suffered from a serious medical need, and that specific defendant(s) were aware

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of a significant risk to his health or safety and responded (or failed to respond) in specific ways

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reflecting deliberate indifference to plaintiff’s health and safety. Toguchi v. Chung, 391 F.3d

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1051, 1058 (9th Cir. 2004).

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To state a claim for retaliation in violation of his First Amendment rights, plaintiff must

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state facts establishing that (1) a particular defendant took adverse action against plaintiff (2)

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because of (3) conduct of plaintiff’s that was protected by the First Amendment, and that the

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adverse action (4) chilled plaintiff’s exercise of his rights and (5) did not reasonably advance a

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legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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The mishandling of inmate appeals does not violate the Constitution, because inmates are

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not entitled to a specific grievance procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). The filing of false reports and the
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fabrication of evidence do not themselves violate the Constitution. See Sprouse v. Babcock, 870

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F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986); Hanrahan

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v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984).

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V. MOTION FOR CLARIFICATION

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Plaintiff has filed a motion for clarification, ECF No. 62, seeking information about the

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district judge assigned to this case and the about this court’s Alternative Dispute Resolution

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program for prisoner cases. Plaintiff is informed that U.S. District Judge Morrison C. England is

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assigned to this case. Plaintiff is further informed that the ADR program is available only where

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defendants have been served and have appeared in a case. That happens after a complaint has

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been screened and found to state at least one viable claim for relief. There is no right to

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participation in the ADR process; defendants may opt out. Because your complaint has not been

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served and no defendants have appeared, this case will not be referred to ADR at this time. If you

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choose to amend and your Second Amended Complaint is found on screening to state a claim for

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relief, your case may be referred to ADR after service and appearance of a defendant.

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The motion for clarification is granted to the extent that this information has been
provided, and is otherwise denied.

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VI. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT

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Your First Amended Complaint has been screened. The court finds that it does not state a

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claim for relief, so it will not be served. You may amend the complaint to clarify exactly what

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happened to you, when it happened, and which defendant did what. Without that information the

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court cannot tell whether the events you are complaining about support legal claims for relief.

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Information about the necessary information has been provided above. If you choose to amend

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your complaint, the second amended complaint must include all of the claims you want to make

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because the court will not look at the claims or information in the original complaint. Any claims

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not in the Second Amended Complaint will not be considered.

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Your case will not be considered for or ADR unless a Second Amended Complaint is

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screened, found to state a claim, served on defendant(s), and at least one defendant appears.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s First Amended Complaint, ECF No. 24, has been screened and found not to

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state a claim for relief.

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2. Within thirty days from the date of service of this order, plaintiff may 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

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number assigned this case and must be labeled “Second Amended Complaint.” Plaintiff must file

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an original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.
3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.
4. Plaintiff’s motion for clarification, ECF No. 62, is GRANTED to the extent that

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responsive information has been provided herein, and is otherwise DENIED.

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DATED: April 12, 2021

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