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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO HERRERA,

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No. 2:17-cv-1278 KJN P

Plaintiff,
v.

ORDER

BLANDION,

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Defendant.

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Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks 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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On August 28, 2017, plaintiff requested leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). Accordingly, the request to proceed in forma pauperis 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 this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).
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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff claims that on June 19, 2017, defendant Blandion stopped plaintiff as he was

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leaving group, and told plaintiff “we haven’t forgot [sic] what you done [sic] to the two CDC ISU

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officers Lt. Lee and Officer Bosh at Vacaville prison hospital in 2010 and 2011. You put the

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federal courts on them, on the CDC staff. . . . After this case is over, that you have on one of the

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medical staff here . . . I am going to tell the inmates here that you’re a snitch, a rat, . . . for they

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would stab you. For we could pay you back, for what you did to the ISU officers at Vacaville

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Prison Hospital, and get you transferred out of here.” (ECF No. 1 at 3.) Plaintiff asks the court to

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“put a restraining order on the prison hospital so nothing . . . happens to [plaintiff].” (ECF No. 1

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at 4.)

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First, plaintiff requests relief that is too broad. The Prison Litigation Reform Act

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(“PLRA”) requires prisoners to satisfy additional requirements when seeking preliminary

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injunctive relief against prison officials:

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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.

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18 U.S.C. § 3626(a)(2). Section 3626(a)(2) places significant limits upon a court’s power to grant

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preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity

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jurisdiction of federal courts and to protect the bargaining power of prison administrators -- no

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longer may courts grant or approve relief that binds prison administrators to do more than the

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constitutional minimum.” Gilmore v. People of the State of California, 220 F.3d 987, 998-99 (9th

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Cir. 2000).

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Second, the court has reviewed plaintiff’s filings in the Eastern District. Plaintiff’s case,

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Herrera v. Gardner, Lee & Borsch, Case No. 2:10-cv-1744 GEB EFB, was dismissed on May 10,

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2012, based on plaintiff’s failure to exhaust administrative remedies prior to filing the action. At

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present, only two cases are pending for plaintiff: this action, and Herrera v. Idemudia, Case No.

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2:17-cv-1043 EFB, in which plaintiff contends that the “law library lady” told inmates that

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plaintiff was a snitch, a rat, and the inmates could stab him. Id. (ECF No. 5 at 3.) In an earlier

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pleading in that case, plaintiff claimed that on June 1, 2017, nurse Candia told plaintiff that once

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his federal case is over “we are going to pay you back and tell the other inmates that you are a

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snitch and that way the inmates will stab plaintiff.” Id. (ECF No. 4 at 3.) On August 17, 2017,

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plaintiff filed a letter in that case stating that on August 15, 2017, nurse Mageria told plaintiff that

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when all of his civil cases were done, the nurse would tell CDCR staff to transfer plaintiff out,

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and also tell the inmates plaintiff is a rat and that they would stab him. Id. (ECF No. 18.)

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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.)

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A prisoner may bring no § 1983 action until he has exhausted such administrative

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remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v.

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Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “departmental

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policies, decisions, actions, conditions, or omissions that have a material adverse effect on the[ir]

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welfare. . . .” Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be presented on a CDC

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form 602 that asks simply that the prisoner “describe the problem” and “action requested.”

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Therefore, this court ordinarily will review only claims against prison officials within the scope of

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the problem reported in a CDC form 602 or an interview or claims that were or should have been

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uncovered in the review promised by the department.

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Plaintiff concedes that there are administrative remedies available at his prison. He claims

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that the officer told plaintiff that if he filed an appeal, the officer would tell the appeal staff to put

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it in the trash. (ECF No. 1 at 3.) However, plaintiff is required to exhaust his administrative

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remedies. If plaintiff files an appeal, and then administrative staff fail to respond or throw away

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plaintiff’s appeal, plaintiff may claim that administrative remedies were not available to him. But
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plaintiff must at least attempt to exhaust his administrative remedies prior to filing his claim in

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federal court. Inasmuch as plaintiff’s prior case, No. 2:10-cv-1744 GEB EFB, was dismissed

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based on plaintiff’s failure to first exhaust administrative remedies, plaintiff is well aware that he

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is required to exhaust his administrative remedies prior to filing a complaint in federal court.

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Finally, allegations of harassment, embarrassment, and defamation are not cognizable

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under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981),

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aff’d sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d

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1337, 1344 (9th Cir. 1982) (allegations of harassment with regards to medical problems not

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cognizable); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner

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does not have cause of action under § 1983 for being called obscene name by prison employee);

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Batton v. North Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by prison

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officials does not state claim under § 1983). Nor are allegations of mere threats cognizable. See

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Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional

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wrong, nor do allegations that naked threat was for purpose of denying access to courts compel

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contrary result).

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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

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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

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

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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A district court must construe a pro se pleading “liberally” to determine if it states a claim

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and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an

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opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are
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not required, “[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, 550 U.S. at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell

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Atlantic, 550 U.S. at 570).

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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.

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Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions

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can provide the framework of a complaint, they must be supported by factual allegations, and are

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not entitled to the assumption of truth. Id. at 1950.

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In addition, 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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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As discussed above, plaintiff must exhaust such administrative remedies as are available

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to him prior to filing a 42 U.S.C. § 1983 civil rights action. 42 U.S.C. § 1997e(a); Booth, 532

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U.S. at 741 (exhaustion requirement is mandatory).

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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 is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the

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dismissal of this action.

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Dated: September 1, 2017

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/herr1278.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO HERRERA,

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No. 2:17-cv-1278 MCE KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

BLANDION,

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Defendant.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint

DATED:
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Plaintiff