Almeida v. Roberts

Filing 15

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Carlos Hector Almeida. Signed by Judge James Donato on 1/26/16. (lrcS, COURT STAFF) (Filed on 1/26/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS HECTOR ALMEIDA,
Plaintiff,

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Re: Dkt. No. 11

J. ROBERTS,
Defendant.

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United States District Court
Northern District of California

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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Case No. 15-cv-03319-JD

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Carlos Hector Almeida, a state prisoner, proceeds with a pro se civil rights complaint

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under 42 U.S.C. § 1983. Plaintiff has filed a motion for leave to file an amended complaint and a

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proposed amended complaint. Service was ordered on the sole defendant in this case, J. Roberts.

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Prison officials notified the Court that defendant Roberts died on June 1, 2013, two years before

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the complaint was filed. Plaintiff has not addressed the death in his amended complaint but has

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identified two new defendants.
DISCUSSION

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I.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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United States District Court
Northern District of California

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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LEGAL CLAIMS
Plaintiff states that one defendant used excessive force against him and two other

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defendants were responsible for failing to properly investigate the incident. The treatment a

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prisoner receives in prison and the conditions under which he is confined are subject to scrutiny

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under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). “After

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incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual

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punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986)

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(ellipsis in original) (internal quotation and citation omitted). The core judicial inquiry is whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm. Whitley, 475 U.S. at 320-21.

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Supervisor defendants are entitled to qualified immunity where the allegations against

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them are simply “bald” or “conclusory” because such allegations do not “plausibly” establish the

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supervisors’ personal involvement in their subordinates’ constitutional wrong, Iqbal, 556 U.S. at
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675-84 (noting no vicarious liability under Section 1983 or Bivens actions), and unfairly subject

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the supervisor defendants to the expense of discovery and continued litigation, Henry A. v.

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Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (general allegations about supervisors’ oversight

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responsibilities and knowledge of independent reports documenting the challenged conduct failed

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to state a claim for supervisor liability). So it is insufficient for a plaintiff to allege only that

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supervisors knew about the constitutional violation and that they generally created policies and

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procedures that led to the violation, without alleging “a specific policy” or “a specific event”

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instigated by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942

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(9th Cir. 2012). Respondeat superior liability does not lie under section 1983. There is no
liability under section 1983 solely because one person is responsible as a supervisor or superior

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United States District Court
Northern District of California

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officer for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989).

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The Court previously ordered service on the claim that defendant Roberts sprayed plaintiff

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with “pepper spray” on his face and upper body for no reason. This caused plaintiff to suffer

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burning, coughing and difficulty breathing; the burning sensation lasted for several days, and

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plaintiff suffered two “abrasions” in his right eye.

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In the amended complaint plaintiff also states that he filed an inmate appeal regarding this

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incident and that defendant Cook failed to properly investigate the allegation or discipline Roberts.

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Plaintiff also alleges that defendant Davis denied a later inmate appeal. Plaintiff argues that Cook

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and Davis violated the Eighth Amendment in allowing the excessive force and covered up the

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incident.

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Plaintiff has failed to link Cook or Davis to the alleged Eighth Amendment violation

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because they were not personally involved in the incident and there is no respondeat superior

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liability. Nor has plaintiff set forth a cognizable due process violation in his allegations that Cook

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and Davis did not believe his allegations. Plaintiff is not entitled to relief for his claim that the

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inmate appeals were denied because there is no constitutional right to a prison administrative

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appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). The complaint will be dismissed with leave to amend
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to address these deficiencies.
The incident in this case occurred in 2012. Defendant Roberts passed away on June 1,

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2013, and plaintiff filed this case on July 17, 2015. Docket Nos. 1, 10. No party has been served

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on behalf of Roberts. Rule 25(a)(1) of the Federal Rules of Civil Procedure governs the

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substitution of parties after death, providing for substitution where the claim is not extinguished by

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the death of the party. In Robertson v. Wegmann, 436 U.S. 584 (1978), the Supreme Court held

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that the law of the forum state is “the principle reference point in determining survival of civil

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rights actions” under § 1983. Id. at 590. Under California law, a cause of action against a person

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is generally not lost by reason of the person’s death. Cal. Civ. Proc. Code § 377.20(a).
Rule 25(a) authorizes the substitution of proper parties when an existing party dies after

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United States District Court
Northern District of California

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the suit is commenced, but does not address situations where the death occurred before the suit

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was filed. Fed. R. Civ. P. 25(a); see Hammond v. Federal Bureau of Prisons, 740 F.Supp.2d 105,

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109–110 (D.D.C. 2010); Darmanchev v. Roytshteyn, 234 F.R.D. 78, 80 (E.D. Pa. 2005). While

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the Ninth Circuit has not addressed this issue, courts have held, as a rule, that the substitution of

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parties cannot be ordered under Rule 25(a)(1) where the person for whom substitution is sought

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died prior to being named a party. Davis v. Cadwell, 94 F.R.D. 306, 307 (D. Del. 1982);

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Mizukami v. Buras, 419 F.2d 1319 (5th Cir. 1969) (rule allowing substitution for deceased party

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where claim is not extinguished by his death was not available to plaintiff in death action where

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defendant predeceased filing of action); Laney v. South Carolina Dept. of Corrections, 2012 WL

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4069680 (D. S.C., May 8, 2012) (Rule 25 is not applicable in this case because plaintiff sues a

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person who was already dead, and not a person who was a proper party and served with process

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prior to dying).

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If plaintiff wishes to continue with the claim against Roberts he needs to address any of the

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claims presentation requirements of California Probate Code § 9000 et seq. or other aspects of

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state law that might apply and he will need to identify the appropriate representative of Robert’s

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estate and name that individual in an amended complaint.

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CONCLUSION

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The motion for leave to file an amended complaint (Docket No. 11) is GRANTED.

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The amended complaint is DISMISSED with leave to amend. The second

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amended complaint must be filed within twenty-eight (28) days of the date this order is filed and

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must include the caption and civil case number used in this order and the words SECOND

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AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces

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the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference.

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It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

United States District Court
Northern District of California

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: January 26, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS HECTOR ALMEIDA,

Case No. 15-cv-03319-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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J. ROBERTS,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 26, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Carlos Hector Almeida ID: Prisoner Id G-30247
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: January 26, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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