Herrera v. Blandion

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 09/01/17 granting 8 Motion 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 C DC order filed concurrently herewith. Plaintiff's complaint is dismissed. Within 30 days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit it with an original and 1 copy of the 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 ARMANDO HERRERA, 12 13 14 No. 2:17-cv-1278 KJN P Plaintiff, v. ORDER BLANDION, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 19 § 636(b)(1). 20 On August 28, 2017, plaintiff requested leave to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915. Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. 22 § 1915(a). Accordingly, the request to proceed in forma pauperis 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 this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 26 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 27 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 28 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 2 1 In reviewing a complaint under this standard, the court must accept as true the allegations of the 2 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 3 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 4 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 Plaintiff claims that on June 19, 2017, defendant Blandion stopped plaintiff as he was 6 leaving group, and told plaintiff “we haven’t forgot [sic] what you done [sic] to the two CDC ISU 7 officers Lt. Lee and Officer Bosh at Vacaville prison hospital in 2010 and 2011. You put the 8 federal courts on them, on the CDC staff. . . . After this case is over, that you have on one of the 9 medical staff here . . . I am going to tell the inmates here that you’re a snitch, a rat, . . . for they 10 would stab you. For we could pay you back, for what you did to the ISU officers at Vacaville 11 Prison Hospital, and get you transferred out of here.” (ECF No. 1 at 3.) Plaintiff asks the court to 12 “put a restraining order on the prison hospital so nothing . . . happens to [plaintiff].” (ECF No. 1 13 at 4.) 14 First, plaintiff requests relief that is too broad. The Prison Litigation Reform Act 15 (“PLRA”) requires prisoners to satisfy additional requirements when seeking preliminary 16 injunctive relief against prison officials: 17 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 18 19 20 21 22 18 U.S.C. § 3626(a)(2). Section 3626(a)(2) places significant limits upon a court’s power to grant 23 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity 24 jurisdiction of federal courts and to protect the bargaining power of prison administrators -- no 25 longer may courts grant or approve relief that binds prison administrators to do more than the 26 constitutional minimum.” Gilmore v. People of the State of California, 220 F.3d 987, 998-99 (9th 27 Cir. 2000). 28 //// 3 1 Second, the court has reviewed plaintiff’s filings in the Eastern District. Plaintiff’s case, 2 Herrera v. Gardner, Lee & Borsch, Case No. 2:10-cv-1744 GEB EFB, was dismissed on May 10, 3 2012, based on plaintiff’s failure to exhaust administrative remedies prior to filing the action. At 4 present, only two cases are pending for plaintiff: this action, and Herrera v. Idemudia, Case No. 5 2:17-cv-1043 EFB, in which plaintiff contends that the “law library lady” told inmates that 6 plaintiff was a snitch, a rat, and the inmates could stab him. Id. (ECF No. 5 at 3.) In an earlier 7 pleading in that case, plaintiff claimed that on June 1, 2017, nurse Candia told plaintiff that once 8 his federal case is over “we are going to pay you back and tell the other inmates that you are a 9 snitch and that way the inmates will stab plaintiff.” Id. (ECF No. 4 at 3.) On August 17, 2017, 10 plaintiff filed a letter in that case stating that on August 15, 2017, nurse Mageria told plaintiff that 11 when all of his civil cases were done, the nurse would tell CDCR staff to transfer plaintiff out, 12 and also tell the inmates plaintiff is a rat and that they would stab him. Id. (ECF No. 18.) 13 14 Third, the instant incident occurred on June 19, 2017, and plaintiff appears to concede that he did not attempt to exhaust his administrative remedies. (ECF No. 1 at 3.) 15 A prisoner may bring no § 1983 action until he has exhausted such administrative 16 remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v. 17 Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “departmental 18 policies, decisions, actions, conditions, or omissions that have a material adverse effect on the[ir] 19 welfare. . . .” Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be presented on a CDC 20 form 602 that asks simply that the prisoner “describe the problem” and “action requested.” 21 Therefore, this court ordinarily will review only claims against prison officials within the scope of 22 the problem reported in a CDC form 602 or an interview or claims that were or should have been 23 uncovered in the review promised by the department. 24 Plaintiff concedes that there are administrative remedies available at his prison. He claims 25 that the officer told plaintiff that if he filed an appeal, the officer would tell the appeal staff to put 26 it in the trash. (ECF No. 1 at 3.) However, plaintiff is required to exhaust his administrative 27 remedies. If plaintiff files an appeal, and then administrative staff fail to respond or throw away 28 plaintiff’s appeal, plaintiff may claim that administrative remedies were not available to him. But 4 1 plaintiff must at least attempt to exhaust his administrative remedies prior to filing his claim in 2 federal court. Inasmuch as plaintiff’s prior case, No. 2:10-cv-1744 GEB EFB, was dismissed 3 based on plaintiff’s failure to first exhaust administrative remedies, plaintiff is well aware that he 4 is required to exhaust his administrative remedies prior to filing a complaint in federal court. 5 Finally, allegations of harassment, embarrassment, and defamation are not cognizable 6 under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), 7 aff’d sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 8 1337, 1344 (9th Cir. 1982) (allegations of harassment with regards to medical problems not 9 cognizable); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner 10 does not have cause of action under § 1983 for being called obscene name by prison employee); 11 Batton v. North Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by prison 12 officials does not state claim under § 1983). Nor are allegations of mere threats cognizable. See 13 Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional 14 wrong, nor do allegations that naked threat was for purpose of denying access to courts compel 15 contrary result). 16 17 18 For all of the above reasons, plaintiff’s complaint must be dismissed. In an abundance of caution, he is granted leave to file an amended complaint. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 19 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v. 20 Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each 21 named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is 22 some affirmative link or connection between a defendant’s actions and the claimed deprivation. 23 Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 24 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil 25 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 A district court must construe a pro se pleading “liberally” to determine if it states a claim 27 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 28 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are 5 1 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic, 550 U.S. at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to 4 ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell 5 Atlantic, 550 U.S. at 570). 6 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 7 8 9 10 11 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 12 can provide the framework of a complaint, they must be supported by factual allegations, and are 13 not entitled to the assumption of truth. Id. at 1950. 14 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 15 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 16 complaint be complete in itself without reference to any prior pleading. This requirement exists 17 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 18 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 19 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 20 original complaint, each claim and the involvement of each defendant must be sufficiently 21 alleged. 22 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 23 has evidentiary support for his allegations, and for violation of this rule the court may impose 24 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 25 As discussed above, plaintiff must exhaust such administrative remedies as are available 26 to him prior to filing a 42 U.S.C. § 1983 civil rights action. 42 U.S.C. § 1997e(a); Booth, 532 27 U.S. at 741 (exhaustion requirement is mandatory). 28 //// 6 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 4 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 5 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 Director of the California Department of Corrections and Rehabilitation filed concurrently 7 herewith. 8 3. Plaintiff’s complaint is dismissed. 9 4. Within thirty days from the date of this order, plaintiff shall complete the attached 10 Notice of Amendment and submit the following documents to the court: 11 a. The completed Notice of Amendment; and 12 b. An original and one copy of the Amended Complaint. 13 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 14 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 15 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 16 Failure to file an amended complaint in accordance with this order may result in the 17 dismissal of this action. 18 Dated: September 1, 2017 19 20 /herr1278.14 21 22 23 24 25 26 27 28 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO HERRERA, 12 13 14 No. 2:17-cv-1278 MCE KJN P Plaintiff, v. NOTICE OF AMENDMENT BLANDION, 15 Defendant. 16 17 18 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 19 20 21 22 23 24 25 26 27 28 Amended Complaint DATED: ________________________________ Plaintiff

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