1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREW CARL HARVEY, No. 2:20-cv-01363-CKD P 11 Plaintiff, 12 v. ORDER 13 SERGEANT PURTLE, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se in this federal civil rights action filed 17 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 18 pursuant to 28 U.S.C. § 636(b)(1). 19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 ///// 1 I. Screening Requirement 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, 551 U.S. 89, 93-94 (2007), and 24 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 an inmate at the 28 California Health Care Facility. On June 1, 2020, plaintiff attempted suicide and was then placed 1 in handcuffs. ECF No. 1 at 3. Defendant Purtle then punched him several times while defendant 2 Thomas watched. Id. Plaintiff suffered bruises on his left side and pain. Id. Two days later, 3 defendant Purtle told plaintiff that he needed to drop his complaint if he did not want to get 4 charged with assaulting CDCR staff. Id. at 4. 5 On the form complaint, plaintiff indicates that he has not appealed any of his claims for 6 relief to the highest level of administrative review at the institution where he is confined. ECF 7 No. 1 at 3-4. 8 By way of relief, plaintiff seeks monetary compensation, an investigation of defendant 9 Thomas, and personnel action against defendant Purtle. ECF No. 1 at 6. 10 III. Legal Standards 11 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 12 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 13 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 14 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 15 core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore 16 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 17 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 18 injury, the need for application of force, the relationship between that need and the amount of 19 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 20 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 21 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 22 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 23 cause harm always violates contemporary standards of decency in violation of the Eighth 24 Amendment. Whitley, 475 U.S. at 327. 25 “Within the prison context, a viable claim of First Amendment retaliation entails five 26 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 27 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 28 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 2 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 3 F.3d 1283, 1288 (9th Cir. 2003). 4 Plaintiff is further advised that under 42 U.S.C.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREW CARL HARVEY, No. 2:20-cv-01363-CKD P 11 Plaintiff, 12 v. ORDER 13 SERGEANT PURTLE, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se in this federal civil rights action filed 17 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 18 pursuant to 28 U.S.C. § 636(b)(1). 19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 ///// 1 I. Screening Requirement 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, 551 U.S. 89, 93-94 (2007), and 24 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 an inmate at the 28 California Health Care Facility. On June 1, 2020, plaintiff attempted suicide and was then placed 1 in handcuffs. ECF No. 1 at 3. Defendant Purtle then punched him several times while defendant 2 Thomas watched. Id. Plaintiff suffered bruises on his left side and pain. Id. Two days later, 3 defendant Purtle told plaintiff that he needed to drop his complaint if he did not want to get 4 charged with assaulting CDCR staff. Id. at 4. 5 On the form complaint, plaintiff indicates that he has not appealed any of his claims for 6 relief to the highest level of administrative review at the institution where he is confined. ECF 7 No. 1 at 3-4. 8 By way of relief, plaintiff seeks monetary compensation, an investigation of defendant 9 Thomas, and personnel action against defendant Purtle. ECF No. 1 at 6. 10 III. Legal Standards 11 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 12 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 13 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 14 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 15 core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore 16 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 17 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 18 injury, the need for application of force, the relationship between that need and the amount of 19 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 20 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 21 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 22 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 23 cause harm always violates contemporary standards of decency in violation of the Eighth 24 Amendment. Whitley, 475 U.S. at 327. 25 “Within the prison context, a viable claim of First Amendment retaliation entails five 26 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 27 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 28 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 2 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 3 F.3d 1283, 1288 (9th Cir. 2003). 4 Plaintiff is further advised that under 42 U.S.C. § 1997e(a) “[n]o action shall be brought 5 with respect to prison conditions under section 1983 of this title, or any other Federal law, by a 6 prisoner confined in any jail, prison, or other correctional facility until such administrative 7 remedies as are available are exhausted.” In order to comply with § 1997e(a), state prisoners 8 must use CDCR’s grievance process to exhaust their claims before filing suit. See Sapp v. 9 Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). The exhaustion requirement applies to all inmate 10 suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief 11 sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 12 741 (2001). Generally, failure to exhaust is an affirmative defense that the defendant must plead 13 and prove. Jones, 549 U.S. at 204, 216. However, courts may dismiss a claim if failure to 14 exhaust is clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 15 2014). 16 IV. Analysis 17 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 18 which relief can be granted under federal law. The allegations concerning the use of excessive 19 force lack sufficient detail for the court to determine whether the force was applied to restore 20 discipline and whether there were any efforts to mitigate the use of such force. See Hudson, 503 21 U.S. at 7 (1992). Plaintiff’s attempt to allege a retaliation claim against defendant Purtle fall short 22 because he does not allege that Purtle actually charged him with assault or took any other adverse 23 action against him. It is also clear to the court from the face of the complaint that plaintiff has not 24 exhausted his administrative remedies prior to filing this action as required by the Prison 25 Litigation Reform Act. For all these reasons, plaintiff’s complaint is dismissed. However, the 26 court will grant plaintiff leave to file an amended complaint to try to cure these deficiencies. 27 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 28 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 1 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 2 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 3 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 4 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 5 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This is because, as a 10 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 11 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 12 longer serves any function in the case. Therefore, in an amended complaint, as in an original 13 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 14 V. Plain Language Summary for Pro Se Party 15 The following information is meant to explain this order in plain English and is not 16 intended as legal advice. 17 The complaint is being dismissed because it fails to state any cognizable claim for relief 18 and because you did not exhaust your administrative remedies prior to filing suit. You are being 19 given the chance to try to fix these problems by filing a first amended complaint. If you choose 20 to do so, pay careful attention to the legal standards explained in this order. 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 23 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 24 shall be collected and paid in accordance with this court’s order to the Director of the California 25 Department of Corrections and Rehabilitation filed concurrently herewith. 26 3. Plaintiff’s complaint is dismissed. 27 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 28 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 1 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 2 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 3 | amended complaint in accordance with this order will result in a recommendation that this action 4 | be dismissed. 5 | Dated: December 14, 2020 Pr} i, / CAN fu fl. ay 6 CAROLYN K. DELANEY 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 12/harv 1363.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28