1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELTON ALVIN ACKERSON, No. 2:21-cv-2205 KJN P 12 Plaintiff, 13 v. ORDER 14 ELLIOTT, et al., 15 Defendants. 16 17 Plaintiff is a former county jail inmate, proceeding pro se. Plaintiff seeks relief pursuant 18 to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). On January 25, 2022, it was recommended that this action be dismissed 20 based on plaintiff’s failure to pay the fee or file a request to proceed in forma pauperis. However, 21 on January 28, 2022, plaintiff filed the request to proceed in forma pauperis pursuant to 28 U.S.C. 22 § 1915. The findings and recommendations are vacated. 23 Plaintiff’s declaration makes the showing required by 28 U.S.C. § 1915(a). Accordingly, 24 the request to proceed in forma pauperis is granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 27 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 28 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 1 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 2 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 3 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 4 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 5 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 6 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 7 Plaintiff’s Complaint 8 In his first claim, plaintiff alleges the following. On November 6, 2021, Sgt. Cuneo and 9 cert team members used excessive force on plaintiff while he was housed at the Sacramento 10 County Jail. Defendant Elliott struck plaintiff in the face multiple times. After plaintiff was on 11 the ground, and defendants had full control, defendant Hill tasered plaintiff on his back and 12 booty, resulting in “burned scar tissue.” (ECF No. 1 at 3.) When plaintiff asked defendant Elliott 13 why are you doing this, Elliott responded, “Shut up Nigga.” (Id.) 14 In his second claim, plaintiff claims violations of his Fourth, Eighth, Fourteenth, and 15 Fifteenth Amendment rights. While his allegations are not entirely clear, he contends he was 16 denied his due process rights to file a grievance, and complains that the sheriff’s department is not 17 allowing plaintiff to review the video of the incident so that plaintiff can identify the deputies 18 involved, or to offer proof he was tasered. 19 Plaintiff seeks, inter alia, money damages.1 20 Discussion 21 Initially, the undersigned observes that plaintiff’s complaint does not clearly identify the 22 individuals he intends to name as defendants. In the caption of the complaint, he lists defendants 23 Elliott, Hill, Azevedo, and Arcineda. However, in the defendants’ section of the complaint, 24 where plaintiff is to identify each individual named as a defendant, and set forth the individual’s 25 position and title and where he or she works, plaintiff inexplicably wrote “none” in each of the 26 1 In the alternative, plaintiff seeks early release from prison. However, plaintiff may not obtain 27 release from prison through a civil rights action. Rather, plaintiff may only obtain release by filing a petition for writ of habeas corpus under 28 U.S.C.
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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 ELTON ALVIN ACKERSON, No. 2:21-cv-2205 KJN P 12 Plaintiff, 13 v. ORDER 14 ELLIOTT, et al., 15 Defendants. 16 17 Plaintiff is a former county jail inmate, proceeding pro se. Plaintiff seeks relief pursuant 18 to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). On January 25, 2022, it was recommended that this action be dismissed 20 based on plaintiff’s failure to pay the fee or file a request to proceed in forma pauperis. However, 21 on January 28, 2022, plaintiff filed the request to proceed in forma pauperis pursuant to 28 U.S.C. 22 § 1915. The findings and recommendations are vacated. 23 Plaintiff’s declaration makes the showing required by 28 U.S.C. § 1915(a). Accordingly, 24 the request to proceed in forma pauperis is granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 27 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 28 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 1 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 2 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 3 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 4 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 5 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 6 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 7 Plaintiff’s Complaint 8 In his first claim, plaintiff alleges the following. On November 6, 2021, Sgt. Cuneo and 9 cert team members used excessive force on plaintiff while he was housed at the Sacramento 10 County Jail. Defendant Elliott struck plaintiff in the face multiple times. After plaintiff was on 11 the ground, and defendants had full control, defendant Hill tasered plaintiff on his back and 12 booty, resulting in “burned scar tissue.” (ECF No. 1 at 3.) When plaintiff asked defendant Elliott 13 why are you doing this, Elliott responded, “Shut up Nigga.” (Id.) 14 In his second claim, plaintiff claims violations of his Fourth, Eighth, Fourteenth, and 15 Fifteenth Amendment rights. While his allegations are not entirely clear, he contends he was 16 denied his due process rights to file a grievance, and complains that the sheriff’s department is not 17 allowing plaintiff to review the video of the incident so that plaintiff can identify the deputies 18 involved, or to offer proof he was tasered. 19 Plaintiff seeks, inter alia, money damages.1 20 Discussion 21 Initially, the undersigned observes that plaintiff’s complaint does not clearly identify the 22 individuals he intends to name as defendants. In the caption of the complaint, he lists defendants 23 Elliott, Hill, Azevedo, and Arcineda. However, in the defendants’ section of the complaint, 24 where plaintiff is to identify each individual named as a defendant, and set forth the individual’s 25 position and title and where he or she works, plaintiff inexplicably wrote “none” in each of the 26 1 In the alternative, plaintiff seeks early release from prison. However, plaintiff may not obtain 27 release from prison through a civil rights action. Rather, plaintiff may only obtain release by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. Muhammad v. Close, 540 U.S. 28 749, 750 (2004) (per curiam). 1 areas provided. Then, in the body of his complaint, plaintiff includes a new name, Sgt. Cuneo. 2 Plaintiff is advised that his complaint must clearly identify each individual he seeks to sue in this 3 action, and the caption must include each defendant’s name. Moreover, plaintiff includes no 4 charging allegations as to defendants Azevedo and Arcineda. Plaintiff must set forth specific 5 facts as to each named defendant, setting forth what each individual did to violate plaintiff’s 6 constitutional rights. 7 The Due Process Clause of the Fourteenth Amendment protects a post-arraignment 8 pretrial detainee from the use of excessive force that amounts to punishment. Graham v. Connor, 9 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)). To prove 10 an excessive force claim under § 1983, a pretrial detainee must show that the “force purposely or 11 knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 12 389, 397 (2015). “A court must make this determination from the perspective of a reasonable 13 officer on the scene, including what the officer knew at the time, not with the 20/20 vision of 14 hindsight.” Id. “A court (judge or jury) cannot apply this standard mechanically.” Id. 15 “[O]bjective reasonableness turns on the ‘facts and circumstances of each particular case.’” Id. 16 (quoting Graham, 490 U.S. at 396); accord Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241- 17 42 (2021) (per se rule that use of prone restraint is constitutional so long as individual appears to 18 resist officers’ efforts to subdue him would be improper because it would “contravene the careful, 19 context-specific analysis required” in excessive force cases). 20 There are several considerations that may bear on the reasonableness of the force used 21 including, but not limited to, “the relationship between the need for the use of force and the 22 amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper 23 or to limit the amount of force; the severity of the security problem at issue; the threat reasonably 24 perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 25 397. Because the Kingsley standard applicable to excessive force claims by pretrial detainees is 26 purely objective, a plaintiff need not prove whether the defendant understood that the force used 27 was excessive or intended it to be excessive. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 28 (9th Cir. 2016) (en banc). A pretrial detainee can prevail by providing “‘objective evidence that 1 the challenged governmental action is not rationally related to a legitimate governmental 2 objective or that it is excessive in relation to that purpose.’” Id. (quoting Kingsley, 576 U.S. at 3 397-98). 4 Here, it appears plaintiff may be able to state a cognizable excessive force claim against 5 defendant Hill, who allegedly tasered plaintiff while he was on the ground, and defendant Elliott, 6 who allegedly struck plaintiff in the face multiple times. But plaintiff fails to address what 7 prompted the officers to enter his cell, the severity of the security problem at issue; or the threat 8 reasonably perceived by the officer. Accordingly, plaintiff is granted leave to amend to address 9 such issues. 10 Plaintiff also alleges defendant Elliott said “Shut up Nigga.” Most verbal harassment by 11 jail deputies or prison guards does not rise to the level of cruel and unusual punishment. See, e.g., 12 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (harassment does not constitute an Eighth 13 Amendment violation); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (allegations that 14 prison guards called him names was not sufficient to allege a constitutional violation); 15 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (harassment in the form of vulgar 16 language directed at an inmate is not cognizable under § 1983); McDowell v. Jones, 990 F.2d 17 433, 434 (8th Cir. 1993) (verbal threats and name calling are not actionable under § 1983). Thus, 18 to the extent plaintiff alleges his rights have been violated by Elliott’s repulsive language, 19 Elliott’s statement, standing alone, does not rise to the level of a constitutional violation. 20 And, while plaintiff alleges that Sgt. Cuneo used excessive force, plaintiff may not rely on 21 such a conclusory statement. Rather, plaintiff must set forth specific facts as to what Sgt. Cuneo 22 did that constitutes excessive force, using the standards set forth above. If plaintiff intends to 23 pursue excessive force allegations as to defendants Azevedo and Arcineda, plaintiff must do the 24 same. 25 Finally, plaintiff’s second claim fails to state a cognizable civil rights claim. Aside from 26 failing to identify who denied plaintiff the ability to file a grievance, a defendant’s actions in 27 refusing or responding to plaintiff’s appeals, standing alone, cannot give rise to any claims for 28 relief under section 1983 for violation of due process. “[A prison] grievance procedure is a 1 procedural right only, it does not confer any substantive right upon the inmates.” Buckley v. 2 Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. 3 Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in 4 processing of appeals because no entitlement to a specific grievance procedure); Massey v. 5 Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty 6 interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not 7 give rise to a protected liberty interest requiring the procedural protections envisioned by the 8 Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 9 (E.D. Mo. 1986). Actions in reviewing a prisoner’s administrative appeal cannot serve as the 10 basis for liability under a section 1983 action. Buckley, 997 F.2d at 495. 11 As to plaintiff’s allegations concerning an inability to gather evidence, for example, the 12 videotape of the incident, plaintiff may seek such evidence through discovery once defendants 13 have been served and appeared in the action and the court has issued a discovery and scheduling 14 order.2 Such issues do not constitute constitutional violations. 15 Therefore, for all of the above reasons, plaintiff’s complaint must be dismissed. The 16 court, however, grants leave to file an amended complaint. 17 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 18 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 19 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 20 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 21 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 22 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 23 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 24 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
25 2 Once plaintiff learns the identities of such parties, he must promptly move pursuant to Rule 15 to file an amended complaint to add them as defendants. See Brass v. County of Los Angeles, 26 328 F.3d 1192, 1197-98 (9th Cir. 2003). If the timing of his amended complaint raises questions 27 as to the statute of limitations, plaintiff must satisfy the requirements of Rule 15(c), which is the controlling procedure for adding defendants whose identities were discovered after the action 28 commenced. 1 268 (9th Cir. 1982). 2 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 3 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 4 complaint be complete in itself without reference to any prior pleading. This requirement exists 5 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 6 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 7 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 8 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 9 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 10 and the involvement of each defendant must be sufficiently alleged. 11 Finally, along with his complaint, plaintiff submitted a document styled, “Motion to 12 Petition Due to [Due Process] Violations.” (ECF No. 2.) To the extent plaintiff asks the court to 13 “answer the petition,” his request is granted by this screening order. Plaintiff’s motion contained 14 allegations not included in the complaint. Plaintiff is cautioned that all factual allegations must 15 be included in one pleading. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations (ECF No. 6) are vacated. 18 2. Plaintiff’s request for leave to proceed in forma pauperis is granted. 19 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 21 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 22 Director of the California Department of Corrections and Rehabilitation filed concurrently 23 herewith. 24 4. Plaintiff’s complaint is dismissed. 25 5. Within thirty days from the date of this order, plaintiff shall complete the attached 26 Notice of Amendment and submit the following documents to the court: 27 a. The completed Notice of Amendment; and 28 b. An original of the Amended Complaint. 1 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the 2 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 3 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 4 Failure to file an amended complaint in accordance with this order may result in the 5 || dismissal of this action. 6 6. Plaintiff's motion (ECF No 2) is partially granted. 7 || Dated: February 3, 2022 Foci) Aharon | asksa005 an UNITED STATES MAGISTRATE JUDGE 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 ELTON ALVIN ACKERSON, No. 2:21-cv-2205 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 ELLIOTT, et al, 14 Defendant. 15
16 Plaintiff hereby submits the following document in compliance with the court's order 17 filed______________. 18 _____________ Amended Complaint 19 DATED:
20 ________________________________ 21 Plaintiff
22 23 24 25 26 27 28