1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEWIS, JR., No. 2:25-cv-2190 CSK P 12 Plaintiff, ORDER 13 v. 14 R. VELASQUEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 I. SCREENING STANDARDS 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 II. PLAINTIFF’S COMPLAINT 7 In his first claim, plaintiff alleges that on April 22, 2025, he was cell extracted “by said 8 defendants,” and once he was secured and taken to Sacramento Facility A-1 small yard, plaintiff 9 was socked in the face for trying to catch his breath. (ECF No. 1 at 3.) As a result, plaintiff 10 sustained a swollen face, left eye and right cheek, and his “mental health PTSD was heightened.” 11 (Id.) 12 In his second claim, plaintiff alleges that on April 22, 2025, defendants D. Martin and D. 13 Anderson secured plaintiff from his cell 223 in Facility A-1, and upon exiting the cell, plaintiff 14 was thrown to the floor and assaulted by the defendants, “forearm, elbow and fist.” (ECF No. 1 15 at 4.) As a result, plaintiff sustained a swollen left eye and right cheek, and his “PTSD mental 16 illness [was] heightened.” (Id.) 17 In his third claim, plaintiff claims “officers” used excessive force for plaintiff reporting 18 staff’s misconduct. (Id. at 5.) So, when defendants cell extracted plaintiff, they used unnecessary 19 force because plaintiff was already restrained in handcuffs. (Id.) 20 Plaintiff names four defendants: Correctional Officers R. Velasquez, T. Gonzalez, and D. 21 Martin, and Correctional Lieutenant D. Anderson, all employed at California State Prison, 22 Sacramento. As relief, plaintiff seeks tangible property, such as a car, boat, and house, as well as 23 money damages. (Id. at 6.) 24 III. DISCUSSION 25 A. Excessive Force 26 Plaintiff alleges the use of excessive force in violation of his Eighth and Fourteenth 27 Amendment rights. 28 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 1 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 2 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEWIS, JR., No. 2:25-cv-2190 CSK P 12 Plaintiff, ORDER 13 v. 14 R. VELASQUEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 I. SCREENING STANDARDS 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 II. PLAINTIFF’S COMPLAINT 7 In his first claim, plaintiff alleges that on April 22, 2025, he was cell extracted “by said 8 defendants,” and once he was secured and taken to Sacramento Facility A-1 small yard, plaintiff 9 was socked in the face for trying to catch his breath. (ECF No. 1 at 3.) As a result, plaintiff 10 sustained a swollen face, left eye and right cheek, and his “mental health PTSD was heightened.” 11 (Id.) 12 In his second claim, plaintiff alleges that on April 22, 2025, defendants D. Martin and D. 13 Anderson secured plaintiff from his cell 223 in Facility A-1, and upon exiting the cell, plaintiff 14 was thrown to the floor and assaulted by the defendants, “forearm, elbow and fist.” (ECF No. 1 15 at 4.) As a result, plaintiff sustained a swollen left eye and right cheek, and his “PTSD mental 16 illness [was] heightened.” (Id.) 17 In his third claim, plaintiff claims “officers” used excessive force for plaintiff reporting 18 staff’s misconduct. (Id. at 5.) So, when defendants cell extracted plaintiff, they used unnecessary 19 force because plaintiff was already restrained in handcuffs. (Id.) 20 Plaintiff names four defendants: Correctional Officers R. Velasquez, T. Gonzalez, and D. 21 Martin, and Correctional Lieutenant D. Anderson, all employed at California State Prison, 22 Sacramento. As relief, plaintiff seeks tangible property, such as a car, boat, and house, as well as 23 money damages. (Id. at 6.) 24 III. DISCUSSION 25 A. Excessive Force 26 Plaintiff alleges the use of excessive force in violation of his Eighth and Fourteenth 27 Amendment rights. 28 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 1 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 2 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 3 “[W]henever prison officials stand accused of using excessive physical force in violation of the 4 [Eighth Amendment], the core judicial inquiry is ...whether force was applied in a good-faith 5 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 6 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 (1986)). When determining whether the 7 force was excessive, we look to the “extent of the injury. . . , the need for application of force, the 8 relationship between that need and the amount of force used, the threat ‘reasonably perceived by 9 the responsible officials,’ and ‘any efforts made to temper the severity of a forceful response.’” 10 Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). While de minimis uses of physical force 11 generally do not implicate the Eighth Amendment, significant injury need not be evident in the 12 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically 13 use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 14 U.S. at 9 (citing Whitley, 475 U.S. at 327). 15 Plaintiff’s allegations of excessive force are unclear as to each defendant’s role in the use 16 of force, as well as whether plaintiff’s allegations in claim two are the same use of force as the 17 use of force pled in claim one. In addition, plaintiff only includes factual allegations as to 18 defendants D. Martin and D. Anderson. (ECF No. 1 at 4.) Plaintiff included no charging 19 allegations as to defendants Correctional Officers R. Velasquez and T. Gonzalez. Plaintiff must 20 include charging allegations as to each named defendant, and make clear what each named 21 defendant did or did not do that violated plaintiff’s Eighth Amendment rights. While it appears 22 plaintiff may be able to state a potentially cognizable civil rights claim based on the use of 23 excessive force, plaintiff must clearly identify the dates the use of force occurred and which 24 named defendant used excessive force, as well as alleging facts as to each of the elements set 25 forth in Hudson, 503 U.S. at 7. Plaintiff is granted leave to amend to do so. 26 In addition to alleging cruel and unusual punishment, plaintiff alleges defendants’ actions 27 violated plaintiff’s Fourteenth Amendment rights. (ECF No. 1 at 3, 4.) However, such claims are 28 subsumed by the Eighth Amendment and do not state a separate claim. See Albright v. Oliver, 1 510 U.S. 266, 273 (1994) (“Where a particular Amendment provides an explicit textual source of 2 constitutional protection against a particular sort of government behavior, that Amendment, not 3 the more generalized notion of “substantive due process,” must be the guide for analyzing such a 4 claim.”) (internal quotes and citation omitted); Whitley v. Albers, 475 U.S. 312, 327 (1986) (the 5 Fourteenth Amendment affords a prisoner no greater protection than the Eighth Amendment). 6 Therefore, plaintiff should only amend his complaint to pursue his Eighth Amendment claims 7 against the defendant who violated those rights by allegedly using excessive force. 8 B. Retaliation 9 “Prisoners have a First Amendment right to file grievances against prison officials and to 10 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 11 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 12 prison context has five elements: “(1) An assertion that a state actor took some adverse action 13 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 14 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 15 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 16 (9th Cir. 2005). 17 In his third claim, plaintiff marks the box for “retaliation,” but then claims violations of 18 his Eighth and Fourteenth Amendments. Plaintiff is advised that retaliation claims are governed 19 by the First Amendment, as explained above. 20 Second, plaintiff vaguely claims that “officers” used excessive force based on plaintiff 21 “reporting staff misconduct.” (ECF No. 1 at 5.) But plaintiff fails to explain how the staff 22 misconduct was reported, or to whom, and fails to set forth facts showing that each named 23 defendant was aware of plaintiff’s report of staff misconduct such that the protected conduct 24 motivated the actions of each defendant who allegedly used excessive force. If plaintiff can 25 identify his protected conduct, plaintiff must allege facts showing a nexus between his protected 26 conduct and the alleged retaliatory act. See Brodheim, 584 F.3d at 1271 (a plaintiff must show 27 that his protected conduct was the substantial or motivating factor behind the defendant’s 28 conduct). Plaintiff’s speculation and conclusion that defendants’ conduct was motivated by a 1 desire to retaliate does not suffice to state a claim. See Pratt v. Rowland, 65 F.3d 802, 808 (9th 2 Cir. 1995) (noting that plaintiff’s “sheer speculation” that defendants had knowledge of his 3 protected conduct was insufficient to show retaliatory intent); Frazier v. Dubois, 922 F.2d 560, 4 562 n.1 (10th Cir. 1990) (“Mere allegations of constitutional retaliation will not suffice; plaintiffs 5 must rather allege specific facts showing retaliation because of the exercise of the prisoner’s 6 constitutional rights.”). 7 Further, timing alone is insufficient. See Huskey v. City of San Jose, 204 F.3d 893, 899 8 (9th Cir. 2000) (stating retaliation claim cannot rest on the logical fallacy of post hoc, ergo 9 propter hoc, i.e., “after this, therefore because of this”). While timing may be considered 10 circumstantial evidence of retaliatory intent, “timing alone is insufficient” to support an inference 11 that prison officials took an adverse action against a prisoner in retaliation because of a prisoner’s 12 participation in protected conduct. See Pratt, 65 F.3d at 808. 13 C. Relief 14 Finally, plaintiff is advised that he may not seek tangible property as relief in a civil rights 15 action. Plaintiff may seek compensatory or money damages. 16 IV. LEAVE TO AMEND 17 In light of the above deficiencies, the Court grants plaintiff leave to file an amended 18 complaint. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 19 conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights. 20 See, e.g., West, 487 U.S. at 48. Also, the complaint must allege in specific terms how each 21 named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 22 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 23 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 24 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 25 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 26 268 (9th Cir. 1982). 27 Plaintiff is not granted leave to add new defendants or new claims. 28 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 1 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 2 complaint be complete in itself without reference to any prior pleading. This requirement exists 3 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 4 v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 5 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 6 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 7 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 8 and the involvement of each defendant must be sufficiently alleged. 9 V. CONCLUSION 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 Director of the California Department of Corrections and Rehabilitation filed concurrently 16 herewith. 17 3. Plaintiff’s complaint is dismissed. 18 4. Within thirty days from the date of this order, plaintiff shall complete the attached 19 Notice of Amendment and submit the following documents to the court: 20 a. The completed Notice of Amendment; and 21 b. An original of the Amended Complaint. 22 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 23 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 24 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 25 /// 26 /// 27 /// 28 /// ] Failure to file an amended complaint in accordance with this order may result in the 2 || dismissal of this action. 3 4 | Dated: September 17, 2025 Cin □□□ CHI SOO KIM 6 UNITED STATES MAGISTRATE JUDGE 7 /W/lewi2190.14n 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN LEWIS, JR., No. 2:25-cv-2190 CSK P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 R. VELASQUEZ, et al., 14 Defendants. 15 16 17 Plaintiff submits the following document in compliance with the court’s order 18 filed on ______________ (date). 19 20 Amended Complaint 21 (Check this box if submitting an Amended Complaint) 22 DATED: ________________________________ 23 Plaintiff 24 25 26 27 28