(PC) Howell v. Catlin et al

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/17/2020 GRANTING plaintiff's #2 request to proceed ifp and GRANTING plaintiff 21 days to complete and return the attached form notifying the court how he want to proceed. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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Plaintiff,

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No. 2:20-cv-2058 CKD P

v.

ORDER

D. CATLIN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se. This proceeding was referred to this court

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by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis. As 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, 551 U.S. 89, 93-94 (2007), and

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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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After conducting the required screening, the court finds that plaintiff may proceed on a

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claim for retaliation arising under the First Amendment and excessive force arising under the

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Eighth Amendment against defendant Catlin. With respect to the other defendants identified in

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plaintiff’s complaint, the facts alleged fail to state actionable claims. At this point, plaintiff has
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two options: (1) he may proceed on the claims described above, or (2) attempt to cure the defects

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in his complaint in an amended complaint. If plaintiff choses to amend, plaintiff is informed as

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follows:

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1. Prisoners do not have “a separate constitutional entitlement to a specific prison

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grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Accordingly, the prison grievance procedure does

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not confer any substantive constitutional rights upon inmates and actions in reviewing and

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denying inmate appeals generally do not serve as a basis for liability under section 1983. Id.

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2. Plaintiff asserts a violation of California law, but fails to plead compliance with the

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California Tort Claims Act. Plaintiff is informed that before he may proceed on a claim arising

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under California law in this court he must comply with the terms of the California Tort Claims

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Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. Utils.

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Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating

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compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School

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Dist., 42 Cal.4th 201, 209 (2007).

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3. Denial or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble,

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429 U.S. 97, 104-05 (1976). A violation occurs when a prison official causes injury as a result of

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his or her deliberate indifference to a prisoner’s serious medical needs. Id. A plaintiff can show a

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“serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result

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in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 104.

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

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custody classification level hearings, 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).
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Finally, plaintiff is informed that if he elects to amend the court cannot refer to a prior

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pleading in order to make the amended complaint complete. Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is because,

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

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

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no 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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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. 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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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff is granted 21 days within which to complete and return the attached form

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notifying the court whether he wants to proceed against defendant Catlin on a claim for retaliation

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rising under the First Amendment and a claim for excessive force arising under the Eighth

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Amendment or whether he wishes to file an amended complaint in an attempt to cure the

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deficiencies in his complaint. If plaintiff does not return the form, this action will proceed on the

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claims described above.

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Dated: November 17, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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howe2058.op

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,
Plaintiff,

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No. 2:20-cv-2058 CKD P

PLAINTIFF’S NOTICE OF

v.
D. CATLIN, et al.,

HOW TO PROCEED

Defendants.

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Check one:

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_____ Plaintiff wants to proceed immediately against defendant Catlin on a claim for retaliation

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arising under the First Amendment and a claim for excessive force arising under the Eighth

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Amendment.

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_____ Plaintiff wants time to file an amended complaint.

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DATED:

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________________________________
Plaintiff

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