Patrick v. Ross et al

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/16/2017 GRANTING 2 Motion to Proceed IFP; DENYING 5 Motion for Injunction; and DISMISSING 1 Complaint with leave to file an amended complaint within 30 days. Plaintiff is obligated to pay the statutory filing fee of $350. All fees to be collected and paid in accordance with the court's order to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS PATRICK,

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Plaintiff,

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No. 2:17-cv-0720 CKD P

v.

ORDER

ROSS, et al.,

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Defendants.

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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) and plaintiff has consented to have all matters in this action before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).
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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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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In his complaint, plaintiff alleges he was verbally goaded by a female correctional officer

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into exposing himself, and then was disciplined for exposing himself by being assigned to a

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higher level of custody. Plaintiff also suggests he has been retaliated against, but does not

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provide sufficient factual information in support of his claim. Plaintiff’s allegations do not state a

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claim upon which relief can be granted under federal law. Plaintiff’s complaint must be

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dismissed. The court will, however, grant leave to file an amended complaint.

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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). As a prisoner, plaintiff has the right arising under the

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Eighth Amendment not to be subjected to cruel and unusual punishment. While prisoners have a

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right to be free of physical sexual abuse from correctional officers, the Eighth Amendment’s

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protection generally does not apply to verbal harassment even when sexual in nature. Austin v.

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Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

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In order to state a cognizable claim for violation of due process during things such as

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hearings concerning level of custody, plaintiff must allege facts which suggest that he was

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deprived of a protected liberty interest. Such liberty interests are “generally limited to freedom

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from restraint which, while not exceeding the sentence in such an unexpected manner as to give

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rise to protection by the Due Process Clause of its own force, [citations omitted], nonetheless

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imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). Plaintiff has not alleged that he has

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suffered atypical and significant hardship as a result of a change in his level of custody.

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Plaintiff cannot be retaliated against for exercise of his First Amendment rights. In the

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prison context, a claim for First Amendment retaliation under § 1983 must establish five

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elements: “(1) an assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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

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In his amended complaint, plaintiff must allege in specific terms how each named

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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to

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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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The court notes that plaintiff has filed a document in which he seeks various forms of

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preliminary injunctive relief. In light of the fact that plaintiff’s complaint is being dismissed, this

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motion will be denied. In the future, plaintiff should wait to seek preliminary injunctive relief

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until a defendant appears in this action as the court generally cannot order preliminary injunctive

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relief until it has jurisdiction over the person against whom relief is sought.

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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

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number assigned this case and must be labeled “Amended Complaint.” Failure to file an
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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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5. Plaintiff’s August 11, 2017 “motion for injunction” is denied.
Dated: August 16, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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