1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE LAMAR DUNBAR, No. 2:19-cv-1359 JAM DB 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendant. 16 17 Plaintiff is a county inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that officers used excessive force against him, denied him 19 medical treatment, and threatened him. Presently before the court is plaintiff’s amended 20 complaint for screening (ECF No. 1). For the reasons set forth below the court will dismiss the 21 complaint with leave to amend. 22 SCREENING 23 I. Legal Standards 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 27 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 28 //// 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim a complaint must 14 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 15 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 16 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 17 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 18 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 19 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 The Civil Rights Act under which this action was filed provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 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, 23 or other proper proceeding for redress. 24 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 25 389. The statute requires that there be an actual connection or link between the 26 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 27 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 28 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 1 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 2 omits to perform an act which he is legally required to do that causes the deprivation of which 3 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 5 their employees under a theory of respondeat superior and, therefore, when a named defendant 6 holds a supervisorial position, the causal link between him and the claimed constitutional 7 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 8 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 9 concerning the involvement of official personnel in civil rights violations are not sufficient. See 10 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 II. Allegations in the Amended Complaint 12 Plaintiff states the events giving rise to his claim occurred while he was incarcerated at 13 High Desert State Prison (HDSP). (ECF No. 14 at 2.) He names as defendants in this action: (1) 14 Internal Affairs1; (2) John Doe 1, ISU officer; (3) John Doe 2, Sergeant, (4) John Doe 3, 15 Lieutentant; (5) N. Smith, ISU officer; and (6) John Doe 4, Warden. and (4) “a couple of officers 16 unknown at this time.” (Id. at 1, 2.) 17 Plaintiff has set forth the following allegations in the amended complaint: 18 1) Internal Affairs falsified documents, Destroyed or Concealed evidence in 2017. 2) John Doe 1 Assaulted and Committer Battery 19 with excessive force and brutality upon me in November 2015. John Doe 1 also denied me medical attention in the same time frame. 3) 20 John Doe 2 and John Doe 3 coerced and persuaded a witness with threats on the condition of my life in December 2015. 4) N. Smith 21 Assaulted and Committed Battery with excessive force and brutality upon me in November 2015. N. Smith also denied me medical 22 attention in the same time frame. 5) John Doe 4 falsified documents, destroyed or concealed evidence in 2017. 6) All defendants 23 committed perjury. 24 (ECF No. 14 at 3.) 25 //// 26
27 1 As stated in the prior screening order, the court presumes plaintiff intends to name as a defendant the Office of Internal Affairs (OIA). The OIA conducts “complete, objective, and 28 independent investigations of alleged employee misconduct.” See https://www.cdcr.ca.gov/oia/. 1 III. Plaintiff Fails to State a Claim under § 1983 2 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 3 right secured by the Constitution or law of the United States was violated, and (2) that the alleged 4 violation was committed by a person acting under color of State law.” Long 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 EDDIE LAMAR DUNBAR, No. 2:19-cv-1359 JAM DB 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendant. 16 17 Plaintiff is a county inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that officers used excessive force against him, denied him 19 medical treatment, and threatened him. Presently before the court is plaintiff’s amended 20 complaint for screening (ECF No. 1). For the reasons set forth below the court will dismiss the 21 complaint with leave to amend. 22 SCREENING 23 I. Legal Standards 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 27 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 28 //// 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim a complaint must 14 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 15 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 16 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 17 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 18 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 19 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 The Civil Rights Act under which this action was filed provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 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, 23 or other proper proceeding for redress. 24 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 25 389. The statute requires that there be an actual connection or link between the 26 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 27 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 28 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 1 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 2 omits to perform an act which he is legally required to do that causes the deprivation of which 3 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 5 their employees under a theory of respondeat superior and, therefore, when a named defendant 6 holds a supervisorial position, the causal link between him and the claimed constitutional 7 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 8 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 9 concerning the involvement of official personnel in civil rights violations are not sufficient. See 10 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 II. Allegations in the Amended Complaint 12 Plaintiff states the events giving rise to his claim occurred while he was incarcerated at 13 High Desert State Prison (HDSP). (ECF No. 14 at 2.) He names as defendants in this action: (1) 14 Internal Affairs1; (2) John Doe 1, ISU officer; (3) John Doe 2, Sergeant, (4) John Doe 3, 15 Lieutentant; (5) N. Smith, ISU officer; and (6) John Doe 4, Warden. and (4) “a couple of officers 16 unknown at this time.” (Id. at 1, 2.) 17 Plaintiff has set forth the following allegations in the amended complaint: 18 1) Internal Affairs falsified documents, Destroyed or Concealed evidence in 2017. 2) John Doe 1 Assaulted and Committer Battery 19 with excessive force and brutality upon me in November 2015. John Doe 1 also denied me medical attention in the same time frame. 3) 20 John Doe 2 and John Doe 3 coerced and persuaded a witness with threats on the condition of my life in December 2015. 4) N. Smith 21 Assaulted and Committed Battery with excessive force and brutality upon me in November 2015. N. Smith also denied me medical 22 attention in the same time frame. 5) John Doe 4 falsified documents, destroyed or concealed evidence in 2017. 6) All defendants 23 committed perjury. 24 (ECF No. 14 at 3.) 25 //// 26
27 1 As stated in the prior screening order, the court presumes plaintiff intends to name as a defendant the Office of Internal Affairs (OIA). The OIA conducts “complete, objective, and 28 independent investigations of alleged employee misconduct.” See https://www.cdcr.ca.gov/oia/. 1 III. Plaintiff Fails to State a Claim under § 1983 2 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 3 right secured by the Constitution or law of the United States was violated, and (2) that the alleged 4 violation was committed by a person acting under color of State law.” Long v. County of L.A., 5 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord 6 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (“To make out a cause of 7 action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state 8 law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes” (citations 9 omitted).). 10 Plaintiff has stated only conclusory allegations that defendants violated his rights. Such 11 statements are not sufficient to state a cognizable claim. Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 15 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. Facial plausibility 16 demands more than mere possibility that a defendant committed misconduct and, while factual 17 allegations are accepted as true, legal conclusions are not. Id. “A claim has facial plausibility 18 when plaintiff pleads factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 20 As alleged in the amended complaint, the court cannot determine whether plaintiff has 21 stated a claim. Accordingly, plaintiff must provide the factual background regarding the events at 22 issue in the complaint in order for the court to determine the basis of his claims against 23 defendants. 24 IV. Amending the Complaint 25 As stated above, the complaint fails to state a cognizable claim. However, plaintiff will be 26 given the opportunity to amend. 27 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 28 and the action that defendant took that violated his constitutional rights. The court is not required 1 to review exhibits to determine what plaintiff’s charging allegations are as to each named 2 defendant. Each claim must be included in the body of the complaint. The charging allegations 3 must be set forth in the amended complaint, so defendants have fair notice of the claims plaintiff 4 is presenting. That said, plaintiff need not provide every detailed fact in support of his claims. 5 Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 6 Any amended complaint must show the federal court has jurisdiction, the action is brought 7 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 8 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 9 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 10 Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 11 he does an act, participates in another’s act or omits to perform an act he is legally required to do 12 that causes the alleged deprivation). 13 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 14 R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 15 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 16 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 17 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 18 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 19 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 20 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 21 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 22 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 23 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 24 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 25 amended complaint complete. An amended complaint must be complete in itself without 26 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 27 prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 28 each claim and the involvement of each defendant must be sufficiently alleged. 1 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 2 | has evidentiary support for his allegations, and for violation of this rule the court may impose 3 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's amended complaint (ECF No. 14) is dismissed with leave to amend. 7 2. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 complaint that complies with the requirements of the Civil Rights Act, the Federal 9 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 10 must bear the docket number assigned to this case and must be labeled “First 11 Amended Complaint.” 12 3. Failure to comply with this order will result in a recommendation that this action be 13 dismissed. 14 | Dated: January 21, 2020 15 16 U7 B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 DB:12 23 || DB:1/Orders/Prisoner/Civil Rights/dunb1359.scrn2 24 25 26 27 28