Canada v. Jones

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/16/2017 GRANTING plaintiff's 9 , 12 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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RONALD LEE CANADA,

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Plaintiff,

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v.

No. 2:17-cv-1322 CKD P

ORDER

J. JONES,

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Defendant.

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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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The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon

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which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The

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

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Plaintiff seeks injunctive relief concerning mental health treatment. Plaintiff’s complaint

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concerns treatment he received while committed to the California Department of State Hospitals.

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But when plaintiff filed his complaint, he was housed at North Kern State Prison, and is now

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housed at the California Health Care Facility. If plaintiff seeks injunctive relief in an amended

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complaint, he must explain exactly what sort of relief he seeks and the basis for the relief which

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must concern the treatment he is now receiving. He must also identify a defendant, such as a

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primary care physician, whom the court could order to provide the relief requested.

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To the extent plaintiff seeks damages in an amended complaint, he must explicitly say so

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and plaintiff must allege in specific terms how each named defendant is involved. There can be

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no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976).

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Furthermore, vague and conclusory allegations of official participation in civil rights violations

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

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It appears plaintiff complains about the use of excessive force. In order to adequately

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allege a claim for damages based upon excessive force, plaintiff must allege facts showing the

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amount of force used by a defendant was unnecessary and resulted in a wanton infliction of pain.

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Hudson v. McMillian, 503 U.S. 1, 5 (1992). Not every malevolent touch by a prison guard gives

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rise to a federal cause of action. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). But, the malicious

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and sadistic use of force to cause harm generally violates contemporary standards of decency. Id.

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Plaintiff also suggests he was retaliated against for filing grievances or other complaints

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while housed with the Department of State Hospitals. Prison officials generally cannot retaliate

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against inmates for exercising First Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th

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Cir. 1985). A First Amendment retaliation claim has five elements: 1) the retaliated-against

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conduct is protected; 2) a defendant took adverse action against the plaintiff; 3) there is a causal

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connection between the protected conduct and the adverse action; 4) the defendant's acts would
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chill future First Amendment activities of a reasonable person; and 5) the retaliatory action did

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not advance legitimate correctional goals. Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.

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2012).
The court cannot refer to a prior pleading in order to make plaintiff’s amended complaint

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complete. Local Rule 220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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Finally, the court notes that plaintiff has several lawsuits pending in this court. In his

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amended complaint, plaintiff shall not include any claims upon which he is still proceeding in an

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action filed prior to this one.

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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. 9 & 12) 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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Dated: November 16, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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