1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AUMINTRIUS DAMOUR GUNN, No. 2:21-cv-0409 AC P 12 Plaintiff, 13 v. ORDER 14 STANTON CORRECTIONAL FACILITY, et al., 15 Defendants. 16
17 18 Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 19 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 I. Application to Proceed In Forma Pauperis 21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 22 § 1915(a). ECF Nos. 2, 6. Accordingly, the request to proceed in forma pauperis will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Statutory Screening of Prisoner Complaints 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 has raised claims that are 8 “frivolous, malicious, or 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). 10 A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 17 Franklin, 745 F.2d at 1227-28 (citations omitted). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that defendants Stanton Correctional Facility, Solano County 14 Sheriff-Coroner’s Office, Solano County Sheriff’s Office, and Sgt. Scott violated plaintiff’s 15 constitutional rights. ECF No. 1. Specifically, plaintiff alleges that he received a peanut butter 16 sandwich for breakfast that was “smelly and oilly [sic]” and when he told the officer that he could 17 not eat it the officer told him to throw it away and did not give him another breakfast. Id. at 3-5, 18 7-9. As a result, plaintiff was “still starving” and suffered pain and mental anguish. Id. 19 IV. Failure to State a Claim 20 Plaintiff appears to be attempting to make a conditions of confinement claim based on 21 receiving a single inedible sandwich.1 However, the conditions plaintiff alleges are insufficient to 22 establish a violation of his rights under the Fourteenth Amendment.2 A Fourteenth Amendment 23 1 Plaintiff also indicates that he is attempting to make a claim under the First Amendment and 24 claims related to retaliation, medical care, exercise of religion, disciplinary proceedings, and excessive force. ECF No. 1 at 3-5. However, the allegations implicate only a conditions of 25 confinement claim as there are no allegations regarding plaintiff’s protected conduct, medical 26 care, religion, disciplinary proceedings, or force by an officer.
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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 AUMINTRIUS DAMOUR GUNN, No. 2:21-cv-0409 AC P 12 Plaintiff, 13 v. ORDER 14 STANTON CORRECTIONAL FACILITY, et al., 15 Defendants. 16
17 18 Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 19 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 I. Application to Proceed In Forma Pauperis 21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 22 § 1915(a). ECF Nos. 2, 6. Accordingly, the request to proceed in forma pauperis will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Statutory Screening of Prisoner Complaints 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 has raised claims that are 8 “frivolous, malicious, or 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). 10 A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 17 Franklin, 745 F.2d at 1227-28 (citations omitted). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that defendants Stanton Correctional Facility, Solano County 14 Sheriff-Coroner’s Office, Solano County Sheriff’s Office, and Sgt. Scott violated plaintiff’s 15 constitutional rights. ECF No. 1. Specifically, plaintiff alleges that he received a peanut butter 16 sandwich for breakfast that was “smelly and oilly [sic]” and when he told the officer that he could 17 not eat it the officer told him to throw it away and did not give him another breakfast. Id. at 3-5, 18 7-9. As a result, plaintiff was “still starving” and suffered pain and mental anguish. Id. 19 IV. Failure to State a Claim 20 Plaintiff appears to be attempting to make a conditions of confinement claim based on 21 receiving a single inedible sandwich.1 However, the conditions plaintiff alleges are insufficient to 22 establish a violation of his rights under the Fourteenth Amendment.2 A Fourteenth Amendment 23 1 Plaintiff also indicates that he is attempting to make a claim under the First Amendment and 24 claims related to retaliation, medical care, exercise of religion, disciplinary proceedings, and excessive force. ECF No. 1 at 3-5. However, the allegations implicate only a conditions of 25 confinement claim as there are no allegations regarding plaintiff’s protected conduct, medical 26 care, religion, disciplinary proceedings, or force by an officer. 2 Plaintiff was in the custody of the Solano County Jail at the time of the alleged violations. 27 However, he does not specify whether he was a pretrial detainee or a convicted prisoner. For purposes of screening, the undersigned therefore assumes that he was a pretrial detainee. See 28 (continued) 1 failure-to-protect claim includes the following elements: 2 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 3 (2) Those conditions put the plaintiff at substantial risk of suffering 4 serious harm; 5 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances 6 would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 7 (4) By not taking such measures, the defendant caused the plaintiff’s 8 injuries. 9 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). Even assuming that 10 plaintiff’s breakfast was inedible on a single occasion, these facts do not show that plaintiff was at 11 substantial risk of suffering serious harm or that a reasonable officer would have appreciated the 12 high degree of risk. 13 Furthermore, while “municipalities and other local government units . . . [are] among 14 those persons to whom § 1983 applies,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 15 (1978), “a municipality can be liable under § 1983 only where its policies are the ‘moving force 16 [behind] the constitutional violation,’” City of Canton v. Harris, 489 U.S. 378, 389 (1989) 17 (alteration in original) (quoting Monell, 436 U.S. at 694 and Polk County. v. Dodson, 454 U.S. 18 312, 326 (1981)). There must be “a direct causal link between a municipal policy or custom and 19 the alleged constitutional deprivation.” Id. at 385. A single inedible meal does not demonstrate 20 conditions that were the result of a policy or custom of the county. 21 Finally, though plaintiff names Sgt. Scott as a defendant, he does not allege any actions by 22 Scott and therefore fails to state any claims against him. See Rizzo v. Goode, 423 U.S. 362, 371, 23 376 (1976) (no liability under § 1983 without an affirmative link or connection between a 24 defendant’s actions and the claimed deprivation). 25
26 Vazquez v. County of Kern, 949 F.3d 1153, 1163-64 (9th Cir. 2020) (“[T]he Fourteenth Amendment is more protective than the Eighth Amendment ‘because the Fourteenth Amendment 27 prohibits all punishment of pretrial detainees, while the Eighth Amendment only prevents the imposition of cruel and unusual punishment of convicted prisoners.’” (quoting Demery v. 28 Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004))). 1 V. Leave to Amend 2 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 3 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 4 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 5 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 6 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 7 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 8 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 9 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 10 268 (9th Cir. 1982) (citations omitted). 11 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 12 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 13 complete in itself without reference to any prior pleading. This is because, as a general rule, an 14 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 16 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 17 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 18 complaint, the original complaint no longer serves any function in the case. Therefore, in an 19 amended complaint, as in an original complaint, each claim and the involvement of each 20 defendant must be sufficiently alleged. 21 VI. Plain Language Summary of this Order for a Pro Se Litigant 22 Your request to proceed in forma pauperis is granted and you are not required to pay the 23 entire filing fee immediately. 24 You are being given leave to amend because the facts you have alleged in the complaint 25 are not enough to state a claim for relief. You have not shown that you experienced conditions 26 that put you at a substantial risk of serious harm and that a reasonable officer would have been 27 aware of that risk. You also have not shown that the conditions you experienced were the result 28 of a policy or custom of the jail or the sheriff’s department. ] If you choose to amend your complaint, the first amended complaint must include all of 2 || the claims you want to make because the court will not look at the claims or information in the 3 || original complaint. Any claims or information not in the first amended complaint will not be 4 | considered. 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiff's requests for leave to proceed in forma pauperis, ECF Nos. 2, 6, are 7 || GRANTED. 8 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 9 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 10 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 11 || appropriate agency filed concurrently herewith. 12 3. Plaintiff's complaint fails to state a claim upon which relief may be granted, see 28 13 | U.S.C. § 1915A, and will not be served. 14 4. Within thirty days from the date of service of this order, plaintiff may file an amended 15 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 16 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 17 || number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 18 || original and two copies of the amended complaint. Failure to file an amended complaint in 19 | accordance with this order will result in a recommendation that this action be dismissed. 20 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 21 | form used in this district. 22 || DATED: August 9, 2021 ~
04 UNITED STATES MAGISTRATE JUDGE 25 26 27 28