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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL M. COTTRELL, 12 13 14 No. 2:17-cv-0700 CKD P Plaintiff, v. ORDER M. E. SPEARMAN, et al., 15 Defendants. 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). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 25 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 //// 28 //// 2 1 III. Discussion 2 Plaintiff briefly alleges that corrections officials at High Desert State Prison failed to 3 protect him, retaliated against him, and used excessive force in violation of his constitutional 4 rights. (ECF No. 1.) 5 The Eighth Amendment’s prohibition on cruel and unusual punishment imposes on prison 6 officials, among other things, a duty to “take reasonable measures to guarantee the safety of the 7 inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S. 8 517, 526-27 (1984)). “‘[P]rison officials have a duty ... to protect prisoners from violence at the 9 hands of other prisoners.’” Id. at 833. “[A] prison official violates the Eighth Amendment when 10 two requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently 11 serious[.]’ For a claim . . . based on a failure to prevent harm, the inmate must show that he is 12 incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, “[t]o 13 violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently 14 culpable state of mind’ ... [T]hat state of mind is one of ‘deliberate indifference’ to inmate health 15 or safety.” Id. The prison official will be liable only if “the official knows of and disregards an 16 excessive risk to inmate health and safety; the officials must both be aware of facts from which 17 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 18 the inference.” Id. at 837. 19 In determining whether a correctional guard’s use of force was wanton and unnecessary 20 under the Eighth Amendment, courts may evaluate the extent of the prisoner’s injury, the need for 21 application of force, the relationship between that need and the amount of force used, the threat 22 reasonably perceived by the responsible officials, and any efforts made to temper the severity of a 23 forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations omitted). While the 24 absence of a serious injury is relevant to the Eighth Amendment inquiry, it does not end it. 25 Hudson, 503 U.S. at 7. Mere negligence is not actionable under §1983 in the prison context. 26 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 27 28 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 3 1 chilled the inmate’s exercise of his constitutional rights, and the action did not advance a 2 legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 3 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it fails 4 to state a claim upon which relief can be granted under the above standards. Although the 5 Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair 6 notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. 7 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of 8 particularity overt acts which defendants engaged in that support plaintiff’s claim. Id. 9 Additionally, Fed. R. Civ. P. 18(a) provides: “A party asserting a claim to relief as an 10 original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or 11 as alternate claims, as many claims, legal, equitable, or maritime as the party has against an 12 opposing party.” “Thus multiple claims against a single party are fine, but Claim A against 13 Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George v. Smith, 14 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants belong in 15 different suits[.]” Id. 16 For these reasons, plaintiff’s complaint must be dismissed. The court will, however, grant 17 leave to file an amended complaint. 18 IV. Leave to Amend 19 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 20 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 21 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in 22 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 23 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 24 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 25 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 26 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 27 28 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 4 1 complaint be complete in itself without reference to any prior pleading. This is because, as a 2 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 3 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 4 longer serves any function in the case. Therefore, in an amended complaint, as in an original 5 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 8 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 9 shall be collected and paid in accordance with this court’s order to the Director of the California 10 Department of Corrections and Rehabilitation filed concurrently herewith. 11 3. Plaintiff’s complaint is dismissed. 12 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 13 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 14 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 15 assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 16 two copies of the amended complaint; failure to file an amended complaint in accordance with 17 this order will result in a recommendation that this action be dismissed. 18 Dated: April 12, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 2/ 24 25 26 27 28 5

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