(PC)Elliott v. Ehlers et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 11/18/22 DISMISSING plaintiff's amended complaint and GRANTING plaintiff 30 days from the date of service of this order to file a second amended complaint. The Clerk is directed to send plaintiff the form for filing a civil rights complaint by a prisoner, and a copy of plaintiff's 10 amended complaint. (Kastilahn, A)

Case 2:22-cv-01040-KJN Document 11 Filed 11/21/22 Page 1 of 6
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER ELLIOTT,

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Plaintiff,

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No. 2:22-cv-1040 KJN P

v.

ORDER

R. EHLERS, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s amended complaint is now

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before the court.
As discussed below, plaintiff’s amended complaint is dismissed with leave to amend.

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Screening Standards
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 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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Case 2:22-cv-01040-KJN Document 11 Filed 11/21/22 Page 2 of 6
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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.
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.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Incomplete Pleading Form

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Plaintiff’s amended complaint is defective because it does not bear plaintiff’s signature,

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does not specify the relief he seeks, and does not clearly set forth the injuries he claims resulted

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from defendant’s actions. Therefore, plaintiff is required to re-file his amended complaint using
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Case 2:22-cv-01040-KJN Document 11 Filed 11/21/22 Page 3 of 6
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the court’s form so that he can ensure such information is provided, and so that he can clearly

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identify each claim he raises against defendant Ehlers. Plaintiff may append his handwritten

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pages explaining the discrepancies in the subsequent reports, as discussed below.

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Excessive Force

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It appears plaintiff is able to state a potentially cognizable excessive force claim against

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defendant R. Ehlers. However, plaintiff articulates his claims by pointing out discrepancies in

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defendant Ehlers’ report, as well as the report by Officer Simmons, an alleged witness. On the

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amended complaint form, plaintiff should simply set forth the facts he contends demonstrates

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defendant Ehlers used excessive force against plaintiff, by addressing each element of an Eighth

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Amendment claim, as set forth below:

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“[W]henever prison officials stand accused of using excessive physical force in violation

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of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-

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faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312 (1986)).

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When determining whether the force was excessive, we look to the “extent of the injury. . . , the

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need for application of force, the relationship between that need and the amount of force used, the

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threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the

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severity of a forceful response.’” Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). While

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de minimis uses of physical force generally do not implicate the Eighth Amendment, significant

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injury need not be evident in the context of an excessive force claim, because “[w]hen prison

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officials maliciously and sadistically use force to cause harm, contemporary standards of decency

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always are violated.” Hudson, at 9 (citing Whitley, at 327).

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Retaliation

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Plaintiff ‘s retaliation claims are too vague and conclusory for the court to determine

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whether plaintiff can state cognizable retaliation claims against defendant Ehlers. For example,

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while plaintiff claims defendant started using retaliation by not sending out plaintiff’s mail to his

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family. But plaintiff does not provide dates that would indicate that defendant interfered with

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plaintiff’s mail because plaintiff filed a grievance against Ehlers. It is also unclear whether
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plaintiff is raising only one claim of retaliation or two claims. Using the court’s form to

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separately address each claim will assist the court and defendant in addressing plaintiff’s claims.

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Plaintiff is again provided the following standards that govern retaliation causes of action.

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It is well-established that prisoners have a First Amendment right to file prison grievances and

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that retaliation against prisoners for their exercise of this right is a constitutional violation.

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). “Within the prison context, a viable claim

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of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote and citations omitted). To prevail on a retaliation claim, a

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plaintiff may “assert an injury no more tangible than a chilling effect on First Amendment rights.”

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Brodheim, 584 F.3d at 1269-70. Furthermore, “a plaintiff does not have to show that ‘his speech

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was actually inhibited or suppressed,’ but rather that the adverse action at issue ‘would chill or

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silence a person of ordinary firmness from future First Amendment activities.’” Id. at 1271

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(citing Rhodes, 408 F.3d at 568-69).
Nevertheless, First Amendment retaliation is not established simply by showing adverse

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activity by a defendant after protected speech; rather, the plaintiff must show a nexus between the

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two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot

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rest on the “logical fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of

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this.””). The plaintiff must allege specific facts demonstrating that the plaintiff’s protected

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conduct was “the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Brodheim,

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584 F.3d at 1271 (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

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1989)).

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Leave to Amend

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As discussed above, plaintiff’s amended complaint must be dismissed. The court,

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however, grants leave to file an amended complaint as to his claims against defendant Ehlers

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only. If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how the named defendant is involved. There can be no

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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); May v.

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

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

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

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An amended complaint must be complete in itself without reference to any prior pleading.

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Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015)

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(“an ‘amended complaint supersedes the original, the latter being treated thereafter as non-

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existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original or

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prior pleading is superseded.
Plaintiff is required to file his second amended complaint on the court’s form. Plaintiff

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may, however, append the handwritten pages from his amended complaint (ECF No. 10 at 2-5) to

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add his contentions concerning the discrepancies in defendant’s subsequent report concerning the

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use of force incident. Plaintiff is not required to submit exhibits but may request that the court

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attach his previously-submitted exhibits to his second amended complaint.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed.

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must be filed

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on the court’s form and bear the docket number assigned this case and must be labeled “Second

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Amended Complaint.”
Failure to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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Case 2:22-cv-01040-KJN Document 11 Filed 11/21/22 Page 6 of 6
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3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

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complaint by a prisoner, and a copy of plaintiff’s amended complaint (ECF No. 10).

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Dated: November 18, 2022

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/elli1040.14amd

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