Espinoza v. Chappell

Filing 3

ORDER Dismissing Case With Leave to Amend. Amended Complaint due by 7/15/2013. Signed by Judge Ronald M. Whyte on 6/12/13. (jg, COURT STAFF) (Filed on 6/13/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHAUN ESPINOZA,

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Plaintiff,

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v.
K.R. CHAPPELL,

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Defendant.

No. C 13-1141 RMW (PR)
ORDER DISMISSING CASE
WITH LEAVE TO AMEND

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint
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pursuant to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a
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separate order. For the reasons stated below, the court dismisses the complaint with leave to
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amend.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police
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Order of Dismissal with Leave to Amend
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged deprivation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Claims
Plaintiff claims that when he arrived at San Quentin State Prison (“SQSP”), his personal

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property was taken and sent home. However, plaintiff claims that when the package arrived at

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his house, it was discovered that there was $ 2415 worth of personal property missing. Plaintiff

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further alleges that there are several health violations at SQSP, including the infrequency of

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laundry service, lack of cleaning supplies, the presence of rats in and around food services,

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roaches found in the food, and lead paint within the institution.

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Regarding plaintiff’s missing property, ordinarily, due process of law requires notice and

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an opportunity for some kind of hearing prior to the deprivation of a significant property interest.

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See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978). However, neither the

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negligent nor intentional deprivation of property states a due process claim under Section 1983 if

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the deprivation was random and unauthorized, however. See Parratt v. Taylor, 451 U.S. 527,

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535-44 (1981) (state employee negligently lost prisoner’s hobby kit), overruled in part on other

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grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517,

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533 (1984) (intentional destruction of inmate’s property). The availability of an adequate state

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post-deprivation remedy, e.g., a state tort action, precludes relief because it provides sufficient

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procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot

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foresee, and therefore provide meaningful hearing prior to, deprivation statutory provision for

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post-deprivation hearing or common law tort remedy for erroneous deprivation satisfies due

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process). California law provides such an adequate post-deprivation remedy. See Barnett v.

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Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Thus,

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plaintiff’s property claim is DISMISSED with prejudice.

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The remainder of the complaint has deficiencies that require an amended complaint to be
Order of Dismissal with Leave to Amend
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filed. First, the complaint does not comply with the requirement that the averments be “simple,

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concise, and direct.” For example, one of plaintiff’s claims potentially states an Eighth

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Amendment claim regarding adequate food, if he can sufficiently plead his allegations. The

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Eighth Amendment requires that prisoners receive food that is adequate to maintain health. See

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Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (per curiam) (Eighth Amendment

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requires that pretrial detainees be given food that meets or exceeds the Department of

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Agriculture’s Dietary Guidelines). Nutritionally complete food served to inmates is deficient

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under constitutional standards, however, if it is prepared under conditions so unsanitary as to

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make it unwholesome and a threat to inmates who consume it. See Toussaint v. McCarthy, 597

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F. Supp. 1388, 1412 (N.D. Cal. 1984). Here, plaintiff has not provided the court with the

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sufficient information necessary to determine whether an Eighth Amendment claim for relief has

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been stated against any defendant. “While a complaint . . . does not need detailed factual

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

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

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

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56, (2007) (citations

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omitted). A complaint should be dismissed if it does not proffer “enough facts to state a claim

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for relief that is plausible on its face.” Id. at 570.

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Further, plaintiff names Warden Chappell as the sole defendant in this action. A

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supervisor may be liable under section 1983 upon a showing of (1) personal involvement in the

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constitutional deprivation or (2) a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04

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(9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). A plaintiff must also

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show that the supervisor had the requisite state of mind to establish liability, which turns on the

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requirement of the particular claim — and, more specifically, on the state of mind required by

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the particular claim — not on a generally applicable concept of supervisory liability. Oregon

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State University Student Alliance v. Ray, .699 F.3d 1053, 1071 (9th Cir. 2012). Plaintiff has not

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sufficiently pleaded these factors.
Order of Dismissal with Leave to Amend
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In addition, plaintiff has not linked any individual defendants with his separate claims.

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Plaintiff must specifically identify what each named defendant did or did not do in order to state

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a claim with regard to each separate claim. Plaintiff will be granted leave to amend to allege

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specifics. In his amended complaint, he must establish legal liability of each person for the

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claimed violation of his rights. Liability may be imposed on an individual defendant under

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section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a

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federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City

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of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional

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right within the meaning of section 1983 if he does an affirmative act, participates in another’s

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affirmative act or omits to perform an act which he is legally required to do, that causes the

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deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633; see, e.g., Robins v.

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Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (prison official’s failure to intervene to prevent

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Eighth Amendment violation may be basis for liability). Sweeping conclusory allegations will

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not suffice; plaintiff must instead “set forth specific facts as to each individual defendant’s”

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deprivation of protected rights. Leer, 844 F.2d at 634.

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In sum, plaintiff’s allegations fail to specifically state what happened, when it happened,

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what each defendant did, and how those actions or inactions rise to the level of a federal

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constitutional violation. Without this basic information, the plaintiff’s case must be dismissed.

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The complaint need not be long. In fact, a brief and clear statement with regard to each claim

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listing each defendant’s actions regarding that claim is preferable. Accordingly, the complaint is

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DISMISSED WITH LEAVE TO AMEND. Plaintiff will be provided with thirty days in which

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to amend to correct the deficiencies in his complaint if he can do so in good faith.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

Plaintiff’s complaint is DISMISSED with leave to amend.

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2.

If plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 13-1141 RMW
Order of Dismissal with Leave to Amend
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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If plaintiff files an

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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amended complaint within thirty days and in accordance with this order will result in a

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finding that further leave to amend would be futile and this action will be dismissed.

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Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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4.

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

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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

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order of Dismissal with Leave to Amend
G:\PRO-SE\SJ.Rmw\CR.13\Espinoza141dwla.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SHAUN ESPINOZA,

Case Number: CV13-01141 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
K R CHAPPELL et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on June 13, 2013, 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.

Shaun Espinoza AM-8219
1 Main Street
SQSP
San Quentin, CA 94974
Dated: June 13, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk