1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DON ANGELO DAVIS, No. 2:20-cv-1260 DB P 11 Plaintiff, 12 v. ORDER 13 ROBERT BURTON, Warden, 14 Defendant. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that his Eighth Amendment rights were violated. Presently before 18 the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 7) and his complaint for 19 screening. For the reasons set forth below, the court will grant the motion to proceed in forma 20 pauperis and dismiss the complaint with leave to amend. 21 IN FORMA PAUPERIS 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 23 1915(a). (ECF No. 7.) Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 4 1915(b)(2). SCREENING 5 I. Legal Standards 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 8 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 9 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 10 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 11 U.S.C. § 1915A(b)(1) & (2). 12 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 14 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 15 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 16 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 17 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 21 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 22 (1957)). 23 However, in order to survive dismissal for failure to state a claim a complaint must 24 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 25 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 26 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 27 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 28 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 5 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 6 or other proper proceeding for redress. 7 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 8 389. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. Allegations in the Complaint 23 Plaintiff has alleged the events giving rise to his claim occurred when he was temporarily 24 housed at Duel Vocational Institute (“DVI”) during a transport from High Desert State Prison 25 (“HDSP”) to Pelican Bay State Prison (“PBSP”). (ECF No. 1 at 3.) Plaintiff has identified the 26 following defendants in this action: (1) DVI warden, Robert Burton; (2) DVI correctional officer 27 John Doe; (3) DVI correctional officer John Doe; and (4) DVI correctional officer John Doe. (Id. 28 at 2.) 1 Plaintiff states he arrived at DVI on April 11, 2019. (Id.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DON ANGELO DAVIS, No. 2:20-cv-1260 DB P 11 Plaintiff, 12 v. ORDER 13 ROBERT BURTON, Warden, 14 Defendant. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that his Eighth Amendment rights were violated. Presently before 18 the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 7) and his complaint for 19 screening. For the reasons set forth below, the court will grant the motion to proceed in forma 20 pauperis and dismiss the complaint with leave to amend. 21 IN FORMA PAUPERIS 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 23 1915(a). (ECF No. 7.) Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 4 1915(b)(2). SCREENING 5 I. Legal Standards 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 8 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 9 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 10 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 11 U.S.C. § 1915A(b)(1) & (2). 12 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 14 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 15 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 16 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 17 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 21 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 22 (1957)). 23 However, in order to survive dismissal for failure to state a claim a complaint must 24 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 25 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 26 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 27 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 28 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 5 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 6 or other proper proceeding for redress. 7 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 8 389. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. Allegations in the Complaint 23 Plaintiff has alleged the events giving rise to his claim occurred when he was temporarily 24 housed at Duel Vocational Institute (“DVI”) during a transport from High Desert State Prison 25 (“HDSP”) to Pelican Bay State Prison (“PBSP”). (ECF No. 1 at 3.) Plaintiff has identified the 26 following defendants in this action: (1) DVI warden, Robert Burton; (2) DVI correctional officer 27 John Doe; (3) DVI correctional officer John Doe; and (4) DVI correctional officer John Doe. (Id. 28 at 2.) 1 Plaintiff states he arrived at DVI on April 11, 2019. (Id. at 3.) Plaintiff and 2 approximately eight to ten other inmates were sent to a set of cells that had no windows and no 3 light bulbs. He further states that the cells were as cold as the outdoor temperature and it seemed 4 as though things could go in and out of the cell at will. (Id. at 4.) Plaintiff was housed in the cell 5 for six days. 6 Plaintiff alleges he got sick from the conditions he was exposed to in the cell. (Id.) He 7 “explained to the lady sergeant that [he] had got[ten] sick from being in a cell with no windows 8 and that [he] needed medical attention.” (Id.) Plaintiff was seen by a prison medical official. 9 After plaintiff arrived at PBSP he filed a grievance related to the incident at DVI. (Id. at 10 5.) Plaintiff seeks $400.00 in monetary compensation for his suffering during the incident. (Id. at 11 5-6.) 12 III. Does Plaintiff State a § 1983 Claim? 13 A. Eighth Amendment – Conditions of Confinement 14 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 15 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. 16 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither 17 accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and 18 wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by 19 the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. What is needed to show 20 unnecessary and wanton infliction of pain “varies according to the nature of the alleged 21 constitutional violation.” Hudson, 503 U.S. at 5 (citing Whitley, 475 U.S. at 320). 22 “[A] prison official may be held liable under the Eighth Amendment for denying humane 23 conditions of confinement only if he knows that inmates face a substantial risk of serious harm 24 and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 25 511 U.S. 825, 847 (1994). To state a claim for threats to safety or health, an inmate must allege 26 facts to support that he was incarcerated under conditions posing a substantial risk of harm and 27 that prison officials were “deliberately indifferent” to those risks. Id. at 834; Frost v. Agnos, 152 28 F.3d 1124, 1128 (9th Cir. 1998). To adequately allege deliberate indifference, a plaintiff must set 1 forth facts to support that a defendant knew of, but disregarded, an excessive risk to inmate 2 safety. Farmer, 511 U.S. at 837. That is, “the official must both be aware of facts from which the 3 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 4 inference.” Id. 5 Plaintiff’s allegations regarding the conditions of the cell he was confined to while housed 6 at DVI are sufficient to state a claim for violation of his Eighth Amendment rights. See Ramos v. 7 Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (Inmates must be provided within their living spaces 8 “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot 9 and cold water, light, heat, plumbing).”). However, as set forth below, plaintiff will be directed to 10 amend the complaint because it fails to properly identify the defendants and explain how each 11 defendant was involved in the alleged rights violations. 12 B. Supervisory Liability 13 Plaintiff has identified warden Burton as a defendant in this action but has failed to state 14 any facts showing how Burton violated his rights. Under § 1983, plaintiff must demonstrate that 15 each named defendant personally participated in the deprivation of his rights. Jones v. Williams, 16 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient 17 to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. 18 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The statute clearly requires that there be an 19 actual connection or link between the actions of the defendants and the deprivation alleged to 20 have been suffered by the plaintiff. See Monell, 436 U.S. 692. Plaintiff has failed to state facts 21 showing how warden Burton violated his rights. In order to state a cognizable claim, plaintiff 22 must set forth specific factual allegations demonstrating how each defendant violated his rights. 23 See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 24 Additionally, supervisory personnel are generally not liable under § 1983 for the actions 25 of their employees under a theory of respondeat superior and, therefore, when a named defendant 26 holds a supervisorial position, the causal link between him and the claimed constitutional 27 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 28 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 1 concerning the involvement of official personnel in civil rights violations are not sufficient. See 2 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Therefore, to the extent plaintiff is 3 making claims of supervisory liability against warden Burton, those claims are not cognizable 4 here. 5 C. Doe Defendants 6 Plaintiff has identified the three correctional officers who took him to the cells he alleges 7 were uninhabitable as “John Doe.” (ECF No. 1 at 2-4.) The use of John Does in pleading 8 practice is generally disfavored – but it is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637, 9 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Lopes v. 10 Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). However, “John Doe” defendant liability 11 must also be properly alleged. A plaintiff may use “Doe” designations to refer to defendants 12 whose names are unknown; however, he must number them in the complaint, e.g., “John Doe 1,” 13 “John Doe 2,” so that each numbered John Doe refers to a specific person. If plaintiff chooses to 14 file an amended complaint, he shall either name the defendants involved or list the Doe 15 defendants involved and describe what each did to violate his rights. If plaintiff can only list 16 these defendants as John Doe, plaintiff should allege specific acts that each Doe defendant did, 17 such as “John Doe 1 did X” and John Doe 2 did Y.” Alexander v. Tilton, No. 1:07-cv-0759 LJO 18 DLB, 2009 WL 464486, *5 (E.D. Cal. Feb. 24, 2009). 19 Should plaintiff’s amended complaint state a cognizable claim he may be afforded an 20 opportunity for limited, preliminary discovery to identify the names of the John Does “unless it is 21 clear that discovery would not uncover their identities,” Gillespie, 629 F.2d at 642, and only after 22 the court is satisfied he has exhausted every other possibility of finding their names. Since by this 23 order plaintiff will be granted the opportunity to file an amended complaint, he must use the time 24 given to amend to do everything he can to supply the names of the Doe defendants without 25 further assistance from the court. He may seek extensions of time for the filing of an amended 26 complaint for that purpose if necessary. 27 //// 28 //// 1 IV. Amending the Complaint 2 As set forth above, the complaint fails to state a claim. However, plaintiff will be given 3 the opportunity to file an amended complaint. Plaintiff is advised that in an amended complaint 4 he must clearly identify each defendant and the action that defendant took that violated his 5 constitutional rights. The court is not required to review exhibits to determine what plaintiff’s 6 charging allegations are as to each named defendant. The charging allegations must be set forth 7 in the amended complaint, so defendants have fair notice of the claims plaintiff is presenting. 8 That said, plaintiff need not provide every detailed fact in support of his claims. Rather, plaintiff 9 should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 10 Any amended complaint must show the federal court has jurisdiction, the action is brought 11 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 12 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 13 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 15 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 16 he is legally required to do that causes the alleged deprivation). 17 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 18 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 19 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 20 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 21 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 22 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 23 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 24 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 25 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 26 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 27 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 28 //// 1 An amended complaint must be complete in itself without reference to any prior pleading. 2 | E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 3 | Any amended complaint should contain all of the allegations related to his claim in this action. If 4 | plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 5 | complaint. 6 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 7 | has evidentiary support for his allegations, and for violation of this rule the court may impose 8 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 9 CONCLUSION 10 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 7) is granted. 11 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 12 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 13 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 14 to the Director of the California Department of Corrections and Rehabilitation filed 15 concurrently herewith. 16 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 17 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 18 complaint that complies with the requirements of the Civil Rights Act, the Federal 19 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 20 must bear the docket number assigned to this case and must be labeled “First 21 Amended Complaint.” 22 5. Failure to comply with this order will result in a recommendation that this action be 23 dismissed. 24 | Dated: January 21, 2021 25 26 27 | ps:12 ; oti □□ UNITED STATES MAGISTRATE JUDGE 38 DB: 1/Orders/Prisoner/Civil/Rights/davil260.scrn