1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:21-cv-02291-CKD 12 Plaintiff, 13 v. ORDER 14 COLVIN, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se and in forma pauperis in this civil rights action 18 filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Standard 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 24 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was a mobility impaired 28 inmate at California State Prison-Sacramento (“CSP-Sac”). On March 17, 2020 plaintiff was 1 being escorted back to his cell in handcuffs by defendant Colvin. During the transport, defendant 2 Colvin squeezed plaintiff’s left arm and dug his fingers into plaintiff’s pre-existing arm wound. 3 He also punched plaintiff twice in the lower back. Plaintiff filed an inmate grievance 4 complaining about defendant Colvin’s conduct. In retaliation for filing this inmate grievance, 5 defendant Brooks grabbed plaintiff’s penis and squeezed it on March 24, 2020. Plaintiff suffered 6 pain in his genital area for weeks as a result. 7 Plaintiff also alleges that Chief Deputy Warden Stewart ordered medical staff to remove a 8 medical hold on plaintiff from November 29, 2021 until May 2022 which resulted in the denial of 9 plaintiff’s scheduled cervical disc replacement surgery. Plaintiff was left in extreme pain without 10 the necessary surgery. The complaint alleges that this was done in retaliation for the filing of 11 another staff complaint by plaintiff. 12 Plaintiff also contends that on December 7, 2021, defendants Stewart, Luckie, and Baker 13 placed plaintiff on a transfer list knowing of his extensive enemies in various prison gangs. This 14 placed plaintiff at risk of harm. 15 By way of relief, plaintiff seeks a temporary restraining order preventing his transfer to 16 the California Medical Facility as well as compensatory and punitive damages. 17 III. Legal Standards 18 A. Linkage 19 The civil rights statute requires that there be an actual connection or link between the 20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 24 in another's affirmative acts or omits to perform an act which he is legally required to do that 25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 27 link each named defendant with some affirmative act or omission that demonstrates a violation of 28 plaintiff's federal rights. 1 B. Retaliation 2 “Within the prison context, a viable claim of First Amendment retaliation entails five 3 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 4 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 5 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 6 correctional goal. Rhodes v.
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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 LARRY WILLIAM CORTINAS, No. 2:21-cv-02291-CKD 12 Plaintiff, 13 v. ORDER 14 COLVIN, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se and in forma pauperis in this civil rights action 18 filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Standard 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 24 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was a mobility impaired 28 inmate at California State Prison-Sacramento (“CSP-Sac”). On March 17, 2020 plaintiff was 1 being escorted back to his cell in handcuffs by defendant Colvin. During the transport, defendant 2 Colvin squeezed plaintiff’s left arm and dug his fingers into plaintiff’s pre-existing arm wound. 3 He also punched plaintiff twice in the lower back. Plaintiff filed an inmate grievance 4 complaining about defendant Colvin’s conduct. In retaliation for filing this inmate grievance, 5 defendant Brooks grabbed plaintiff’s penis and squeezed it on March 24, 2020. Plaintiff suffered 6 pain in his genital area for weeks as a result. 7 Plaintiff also alleges that Chief Deputy Warden Stewart ordered medical staff to remove a 8 medical hold on plaintiff from November 29, 2021 until May 2022 which resulted in the denial of 9 plaintiff’s scheduled cervical disc replacement surgery. Plaintiff was left in extreme pain without 10 the necessary surgery. The complaint alleges that this was done in retaliation for the filing of 11 another staff complaint by plaintiff. 12 Plaintiff also contends that on December 7, 2021, defendants Stewart, Luckie, and Baker 13 placed plaintiff on a transfer list knowing of his extensive enemies in various prison gangs. This 14 placed plaintiff at risk of harm. 15 By way of relief, plaintiff seeks a temporary restraining order preventing his transfer to 16 the California Medical Facility as well as compensatory and punitive damages. 17 III. Legal Standards 18 A. Linkage 19 The civil rights statute requires that there be an actual connection or link between the 20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 24 in another's affirmative acts or omits to perform an act which he is legally required to do that 25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 27 link each named defendant with some affirmative act or omission that demonstrates a violation of 28 plaintiff's federal rights. 1 B. Retaliation 2 “Within the prison context, a viable claim of First Amendment retaliation entails five 3 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 4 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 5 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 6 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 7 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 8 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See 9 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and 10 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 11 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison 12 transfer and double-cell status can constitute a cause of action for retaliation under the First 13 Amendment). 14 IV. Analysis 15 After conducting the required screening, the court finds that plaintiff sufficiently alleges 16 an Eighth Amendment excessive force claim against defendant Colvin, an Eighth Amendment 17 sexual assault claim against defendant Brooks, and an Eighth Amendment deliberate indifference 18 claim against defendant Stewart. However, the allegations fail to adequately plead a First 19 Amendment retaliation claim against defendants Stewart, Luckie, and Baker. While a prison 20 transfer may constitute an adverse action, plaintiff does not allege that the exercise of his First 21 Amendment rights was chilled by defendants’ conduct or that there was no legitimate correctional 22 goal for his transfer to a different prison. Thus, plaintiff may choose to proceed on the Eighth 23 Amendment claims found cognizable against defendants Colvin, Brooks, and Stewart, or he may 24 attempt to cure the defects with respect to the retaliation claims by filing a first amended 25 complaint. Plaintiff has been provided with the applicable legal standards for the First 26 Amendment retaliation claims and will be given an opportunity to file an amended complaint to 27 attempt to cure the defects in his pleading should he choose to do so. 28 Plaintiff may elect to amend his complaint to attempt to cure the deficiencies identified in 1 this screening order. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 2 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 3 their complaints). If plaintiff chooses to proceed on the Eighth Amendment claims against 4 defendants Colvin, Brooks, and Stewart found cognizable in this screening order, the court will 5 construe this as a request to voluntarily dismiss the additional claims and defendants pursuant to 6 Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. 7 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 8 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 9 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 10 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 11 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 12 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 13 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 14 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This is because, as a 18 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 19 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 20 longer serves any function in the case. Therefore, in an amended complaint, as in an original 21 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 22 V. Plain Language Summary for Pro Se Party 23 The following information is meant to explain this order in plain English and is not 24 intended as legal advice. 25 Some of the allegations in the complaint state claims for relief against the defendants, and 26 some do not. You must decide if you want to (1) proceed immediately on the Eighth Amendment 27 claims against defendants Colvin, Brooks, and Stewart; or, 2) amend the complaint to fix the 28 problems identified in this order with respect to the remaining claims and defendants. Once you 1 decide, you must complete the attached Notice of Election form by checking only one box 2 and returning it to the court. 3 Once the court receives the Notice of Election, it will issue an order telling you what you 4 need to do next. If you do not return this Notice, the court will order service of the complaint 5 only on the claims found cognizable in this screening order and will recommend dismissing the 6 remaining claims and defendants. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 11 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 12 California Department of Corrections and Rehabilitation filed concurrently herewith. 13 3. Plaintiff has the option to proceed immediately on the Eighth Amendment claims 14 against defendants Colvin, Brooks, and Stewart. In the alternative, plaintiff may choose to amend 15 the complaint to fix the deficiencies identified in this order with respect to the remaining claims 16 and defendants. 17 4. Within 21 days from the date of this order, plaintiff shall complete and return the 18 attached Notice of Election form notifying the court whether he wants to proceed on the screened 19 complaint or whether he wants time to file a first amended complaint. 20 5. If plaintiff fails to return the attached Notice of Election within the time provided, the 21 court will construe this failure as consent to dismiss the deficient claims and proceed only on the 22 cognizable claims identified above. 23 6. Plaintiff’s Ex Parte Motion to Correct a Typo (ECF No. 8) is granted to the extent that 24 the Chief Deputy Warden of CSP-Sac is referred to herein as Stewart. The docket shall reflect 25 this spelling of defendant Stewart’s name. 26 ///// 27 ///// 28 ///// 1 7. To the extent that the complaint seeks a temporary restraining order preventing 2 | plaintiffs transfer, the request is denied as moot. A review of the docket indicates that plaintiff 3 || updated his address to the California Medical Facility on or about January 14, 2022. See ECF 4 | Nos. 9-10. 5 | Dated: April 1, 2022 Card ht fa □□ he 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 12/cort229 1 .option.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:21-cv-02291-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 COLVIN, et al., 15 Defendants. 16 17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the Eighth Amendment claims against 19 defendants Colvin, Brooks, and Stewart. Plaintiff voluntarily dismisses the remaining claims and 20 defendants; or 21 _____ Plaintiff wants time to file a first amended complaint. 22 23 DATED: 24 25 ____________________ 26 Plaintiff 27 28