Cottrell v. Spearman et al

Filing 5

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/12/2017 GRANTING plaintiff's 2 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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MICHAEL M. COTTRELL,

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No. 2:17-cv-0700 CKD P

Plaintiff,
v.

ORDER

M. E. SPEARMAN, 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

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Plaintiff briefly alleges that corrections officials at High Desert State Prison failed to

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protect him, retaliated against him, and used excessive force in violation of his constitutional

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rights. (ECF No. 1.)

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The Eighth Amendment’s prohibition on cruel and unusual punishment imposes on prison

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officials, among other things, a duty to “take reasonable measures to guarantee the safety of the

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inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S.

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517, 526-27 (1984)). “‘[P]rison officials have a duty ... to protect prisoners from violence at the

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hands of other prisoners.’” Id. at 833. “[A] prison official violates the Eighth Amendment when

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two requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently

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serious[.]’ For a claim . . . based on a failure to prevent harm, the inmate must show that he is

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incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, “[t]o

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violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently

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culpable state of mind’ ... [T]hat state of mind is one of ‘deliberate indifference’ to inmate health

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or safety.” Id. The prison official will be liable only if “the official knows of and disregards an

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excessive risk to inmate health and safety; the officials must both be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

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the inference.” Id. at 837.

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In determining whether a correctional guard’s use of force was wanton and unnecessary

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under the Eighth Amendment, courts may evaluate the extent of the prisoner’s injury, the need for

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application of force, the relationship between that need and the amount of force used, the threat

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reasonably perceived by the responsible officials, and any efforts made to temper the severity of a

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forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations omitted). While the

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absence of a serious injury is relevant to the Eighth Amendment inquiry, it does not end it.

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Hudson, 503 U.S. at 7. Mere negligence is not actionable under §1983 in the prison context.

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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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To establish a claim for retaliation, a prisoner must show that a prison official took some
adverse action against an inmate because of that prisoner’s protected conduct, that the action
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chilled the inmate’s exercise of his constitutional rights, and the action did not 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 court finds the allegations in plaintiff’s complaint so vague and conclusory that it fails

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to state a claim upon which relief can be granted under the above standards. Although the

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Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff’s claim. Id.

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Additionally, Fed. R. Civ. P. 18(a) provides: “A party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or

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as alternate claims, as many claims, legal, equitable, or maritime as the party has against an

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opposing party.” “Thus multiple claims against a single party are fine, but Claim A against

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants belong in

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different suits[.]” Id.

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For these reasons, plaintiff’s complaint must be dismissed. The court will, however, grant

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leave 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
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 a recommendation that this action be dismissed.

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Dated: April 12, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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