UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
ANTHONY L. CAVALLERO, Case No. 1:20-cv-00095-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
STATE OF IDAHO,
Defendant.
The Clerk of Court conditionally filed Plaintiff Anthony L. Cavallero’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Screening Requirement The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for
relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).
3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction, currently incarcerated at the Idaho Maximum Security Institution. Compl., Dkt. 3, at 1. Plaintiff states that, when he was incarcerated at the Idaho State Correctional Institution, Warden Ramirez made [Plaintiff] walk about ¼ of a mile from Unit 16 to Pendyne [the chow hall]; barefoot with no shoes or socks; and yelled at [Plaintiff] when [he] got there; after [Plaintiff] asked for shoes the day before; and [Plaintiff] had little rocks embedded into the bottoms of [Plaintiff’s] feet. Id. at 2 (capitalization regularized). Plaintiff asserts civil rights claims under 42 U.S.C. § 1983. Id. at 1. 4. Discussion Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court
will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. A. The Only Named Defendant Is Immune from Suit in Federal Court In the caption of the Complaint, Plaintiff has named only the State of Idaho as a Defendant.1 But the Eleventh Amendment prohibits a federal court from entertaining a suit brought by a citizen against a state or state entity absent a waiver of state sovereign
immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not constitute such a waiver. Quern v. Jordan, 440 U.S. 332, 342–44 (1979). Nor has Idaho itself waived its sovereign immunity for constitutional claims. Esquibel v. Idaho, No. 1:11-cv-00606-BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (unpublished). Finally, only a “person” may be
sued pursuant to 42 U.S.C. § 1983, and a state is not considered a “person” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff should omit the State of Idaho from any amended complaint. B. Even if Defendant Were Not Immune from Suit, the Complaint Does Not State Plausible Claim Immunity of the single defendant is not the only problem facing Plaintiff’s
1 Although it appears that Plaintiff might have intended to include Warden Ramirez as a defendant as well, see Compl. at 2, he did not do so. If Plaintiff intends to sue Warden Ramirez, Plaintiff must include him in the caption of an amended complaint. Complaint. It also fails to state a claim upon which relief may be granted. To state a plausible civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately
caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to
measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986). Plaintiff alleges that Warden Ramirez violated the Eighth Amendment, which prohibits cruel and unusual punishment. Compl. at 2. Although prison officials are required to provide prisoners with adequate food, clothing, shelter, sanitation, medical care, and
personal safety, prison conditions may be restrictive—even harsh—without violating the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). To state a claim under the Eighth Amendment, prisoners must show that they are
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
ANTHONY L. CAVALLERO, Case No. 1:20-cv-00095-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
STATE OF IDAHO,
Defendant.
The Clerk of Court conditionally filed Plaintiff Anthony L. Cavallero’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Screening Requirement The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for
relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).
3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction, currently incarcerated at the Idaho Maximum Security Institution. Compl., Dkt. 3, at 1. Plaintiff states that, when he was incarcerated at the Idaho State Correctional Institution, Warden Ramirez made [Plaintiff] walk about ¼ of a mile from Unit 16 to Pendyne [the chow hall]; barefoot with no shoes or socks; and yelled at [Plaintiff] when [he] got there; after [Plaintiff] asked for shoes the day before; and [Plaintiff] had little rocks embedded into the bottoms of [Plaintiff’s] feet. Id. at 2 (capitalization regularized). Plaintiff asserts civil rights claims under 42 U.S.C. § 1983. Id. at 1. 4. Discussion Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court
will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. A. The Only Named Defendant Is Immune from Suit in Federal Court In the caption of the Complaint, Plaintiff has named only the State of Idaho as a Defendant.1 But the Eleventh Amendment prohibits a federal court from entertaining a suit brought by a citizen against a state or state entity absent a waiver of state sovereign
immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not constitute such a waiver. Quern v. Jordan, 440 U.S. 332, 342–44 (1979). Nor has Idaho itself waived its sovereign immunity for constitutional claims. Esquibel v. Idaho, No. 1:11-cv-00606-BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (unpublished). Finally, only a “person” may be
sued pursuant to 42 U.S.C. § 1983, and a state is not considered a “person” under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Plaintiff should omit the State of Idaho from any amended complaint. B. Even if Defendant Were Not Immune from Suit, the Complaint Does Not State Plausible Claim Immunity of the single defendant is not the only problem facing Plaintiff’s
1 Although it appears that Plaintiff might have intended to include Warden Ramirez as a defendant as well, see Compl. at 2, he did not do so. If Plaintiff intends to sue Warden Ramirez, Plaintiff must include him in the caption of an amended complaint. Complaint. It also fails to state a claim upon which relief may be granted. To state a plausible civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately
caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to
measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986). Plaintiff alleges that Warden Ramirez violated the Eighth Amendment, which prohibits cruel and unusual punishment. Compl. at 2. Although prison officials are required to provide prisoners with adequate food, clothing, shelter, sanitation, medical care, and
personal safety, prison conditions may be restrictive—even harsh—without violating the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). To state a claim under the Eighth Amendment, prisoners must show that they are
“incarcerated under conditions posing a substantial risk of serious harm,” or that they have been deprived of “the minimal civilized measure of life’s necessities” as a result of the defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires the plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious enough to constitute cruel and unusual punishment, and (2) a subjective standard, that the defendant acted with “deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on
other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). As for the objective prong of the analysis, “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, the deprivation alleged must be objectively sufficiently harmful or, in other words, sufficiently “grave” or “serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991). With respect to the subjective prong of an Eighth Amendment violation, “deliberate indifference entails something more than mere negligence, [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. “To be cruel and unusual punishment, conduct
that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley, 475 U.S. at 319. To exhibit deliberate indifference, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. If a [prison official] should have
been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Plaintiff’s Complaint does not plausibly allege that either prong of the Eighth Amendment analysis is satisfied. First, Plaintiff has not plausibly alleged that having to walk a quarter of a mile without shoes or socks is sufficiently grave to constitute a violation
of the Eighth Amendment. Such a circumstance is closer to “the de minimis harms against which [the Constitution] does not” protect—rather than “the physical torture against which” it does. McKune v. Lile, 536 U.S. 24, 41 (2002) (Fifth Amendment context). Second, there is nothing in the Complaint to suggest that Warden Ramirez was aware that Plaintiff did not have shoes, rather than assuming that Plaintiff simply failed to
wear them that day. Though Plaintiff asserts that he requested shoes the day before, the Complaint does not plausibly allege that Warden Ramirez was aware of that fact. Thus, Ramirez could not have been deliberately indifferent. Therefore, even if the State of Idaho were not immune from suit in federal court, the Complaint would fail to state a claim upon which relief may be granted.
5. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection
between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” (internal quotation marks and alteration omitted)).
Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct
or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. Further, any amended complaint must contain all of Plaintiff’s allegations in a single
pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An]
amended complaint supersedes the original, the latter being treated thereafter as non- existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint). Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it
should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court. If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review the Amended Complaint.” If Plaintiff does not amend within 28 days, or if the amendment
does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”). 6. Request for Fee Waiver
Plaintiff has requested that the Court clarify its previous Order granting Plaintiff’s application to proceed in forma pauperis. See Dkt. 7. Plaintiff appears to seek a waiver of the filing fee for this action, instead of being required to pay the fee in monthly installments that are automatically withdrawn from his prison trust account statement. The Court has no authority to waive the filing fee. Under 28 U.S.C. § 1915(a), courts
may maintain suits that are filed without prepayment of the filing fee. However, subsection that statute also provides, “Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.” 28 U.S.C. 1915(b)(1). The statute also requires that the fee be withdrawn from the prisoner’s trust account in monthly installments. /d. § 1915(b)(2). It does not permit the Court to excuse Plaintiff from his obligation to pay the fee. ORDER IT IS ORDERED: 1. Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If Plaintiff does not amend within 28 days, this case may be dismissed without further notice. 2. Plaintiff's request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint. 3. Plaintiff's request for clarification (Dkt. 7), construed as a request for waiver of the filing fee, is DENIED.
Le DATED: April 10, 2020 Ks —_—™ :
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INITIAL REVIEW ORDER BY SCREENING JUDGE - 9