1 2 3 4 5 6 7 10 11 ANTHONY C. HERNANDEZ, No. 2:20-cv-1661 DB P 12 Plaintiff, 13 v. ORDER 14 ALLEN, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff claims jail officials violated his rights while he was 19 confined to the Amador County Jail. Presently before the court is plaintiff’s third amended 20 complaint for screening. (ECF No. 16.) For the reasons set forth below, the court will give 21 plaintiff the option of proceeding with the complaint as screened or filing an amended complaint. 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 12 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 13 (1957)). 14 However, in order to survive dismissal for failure to state a claim a complaint must 15 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 16 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 17 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 18 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 19 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 20 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 21 The Civil Rights Act under which this action was filed provides as follows: 22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 23 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, 24 or other proper proceeding for redress. 25 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 26 389. The statute requires that there be an actual connection or link between the 27 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 28 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 1 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 2 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 3 omits to perform an act which he is legally required to do that causes the deprivation of which 4 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 6 their employees under a theory of respondeat superior and, therefore, when a named defendant 7 holds a supervisorial position, the causal link between him and the claimed constitutional 8 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 9 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 10 concerning the involvement of official personnel in civil rights violations are not sufficient. See 11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 12 II. Allegations in the Third Amended Complaint 13 Plaintiff states the events giving rise to the claim occurred while he was incarcerated at 14 Amador County Jail. (ECF No. 16 at 1.) He has identified the following defendants: (1) 15 lieutenant Stone; (2) captain J. Benov; (3) and sergeant McCarty. 16 On September 11, 2019, plaintiff was in his assigned cell sitting at his desk working on 17 something related to his criminal case. (Id. at 4.) Sergeant McCarty approached the cell and told 18 plaintiff to “cuff up.” Plaintiff asked why and McCarty indicated that he wanted to talk to 19 plaintiff. Plaintiff refused, and McCarty “threatened [plaintiff] with unnecessary force.” 20 Lieutenant Stone indicated that they wanted to search his cell. Plaintiff submitted to 21 restraints without resistance. Captain J. Benov and Stone escorted plaintiff to the A-pod main 22 door. Stone was on plaintiff’s left side and Benov was on the right. Plaintiff asked if he could 23 remain present while officers searched his legal documents. 24 Stone “excessively squeeze[d]” plaintiff’s left bicep and tricep causing him pain. (Id. at 25 4-5.) Stone and Benov raised plaintiff up to “tip toe level” and then yanked on his arm causing 26 pain in his shoulder and a loud pop in his neck. (Id. at 5.) They yanked his arm above his neck, 27 causing pain to radiate through his back and neck, then forced his face to the ground. The 28 //// 1 officers used force to keep plaintiff in that position causing him to lose his footing. They dragged 2 him to a safety cell where they kept him for approximately two and a half hours. 3 Plaintiff alleges officers subjected him to such treatment because they did not like plaintiff 4 filing grievances, complaining, threatening to file lawsuits, and obtaining their information during 5 the course of litigation. (Id.) 6 III. Does the Complaint State a Claim under § 1983? 7 A. Cell Search 8 The Fourth Amendment’s protection against unreasonable searches extends to 9 incarcerated individuals. Michenfelder v.
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1 2 3 4 5 6 7 10 11 ANTHONY C. HERNANDEZ, No. 2:20-cv-1661 DB P 12 Plaintiff, 13 v. ORDER 14 ALLEN, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff claims jail officials violated his rights while he was 19 confined to the Amador County Jail. Presently before the court is plaintiff’s third amended 20 complaint for screening. (ECF No. 16.) For the reasons set forth below, the court will give 21 plaintiff the option of proceeding with the complaint as screened or filing an amended complaint. 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 12 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 13 (1957)). 14 However, in order to survive dismissal for failure to state a claim a complaint must 15 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 16 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 17 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 18 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 19 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 20 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 21 The Civil Rights Act under which this action was filed provides as follows: 22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 23 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, 24 or other proper proceeding for redress. 25 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 26 389. The statute requires that there be an actual connection or link between the 27 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 28 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 1 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 2 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 3 omits to perform an act which he is legally required to do that causes the deprivation of which 4 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 6 their employees under a theory of respondeat superior and, therefore, when a named defendant 7 holds a supervisorial position, the causal link between him and the claimed constitutional 8 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 9 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 10 concerning the involvement of official personnel in civil rights violations are not sufficient. See 11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 12 II. Allegations in the Third Amended Complaint 13 Plaintiff states the events giving rise to the claim occurred while he was incarcerated at 14 Amador County Jail. (ECF No. 16 at 1.) He has identified the following defendants: (1) 15 lieutenant Stone; (2) captain J. Benov; (3) and sergeant McCarty. 16 On September 11, 2019, plaintiff was in his assigned cell sitting at his desk working on 17 something related to his criminal case. (Id. at 4.) Sergeant McCarty approached the cell and told 18 plaintiff to “cuff up.” Plaintiff asked why and McCarty indicated that he wanted to talk to 19 plaintiff. Plaintiff refused, and McCarty “threatened [plaintiff] with unnecessary force.” 20 Lieutenant Stone indicated that they wanted to search his cell. Plaintiff submitted to 21 restraints without resistance. Captain J. Benov and Stone escorted plaintiff to the A-pod main 22 door. Stone was on plaintiff’s left side and Benov was on the right. Plaintiff asked if he could 23 remain present while officers searched his legal documents. 24 Stone “excessively squeeze[d]” plaintiff’s left bicep and tricep causing him pain. (Id. at 25 4-5.) Stone and Benov raised plaintiff up to “tip toe level” and then yanked on his arm causing 26 pain in his shoulder and a loud pop in his neck. (Id. at 5.) They yanked his arm above his neck, 27 causing pain to radiate through his back and neck, then forced his face to the ground. The 28 //// 1 officers used force to keep plaintiff in that position causing him to lose his footing. They dragged 2 him to a safety cell where they kept him for approximately two and a half hours. 3 Plaintiff alleges officers subjected him to such treatment because they did not like plaintiff 4 filing grievances, complaining, threatening to file lawsuits, and obtaining their information during 5 the course of litigation. (Id.) 6 III. Does the Complaint State a Claim under § 1983? 7 A. Cell Search 8 The Fourth Amendment’s protection against unreasonable searches extends to 9 incarcerated individuals. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (citing Bell 10 v. Wolfish, 441 U.S. 520, 558 (1979)). However, to the extent plaintiff claims that his rights 11 were violated by an unauthorized search of his cell, such a claim fails as a matter of law. See 12 Hudson v. Palmer, 468 U.S. 517, 536 (1984) (“The Fourth Amendment has not applicability to a 13 prison cell.”); see also Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (holding that pretrial 14 detainees have no reasonable expectation of privacy in their cells). This is the case even though 15 plaintiff has alleged that he had legal materials related to his case and that he was proceeding 16 without counsel in that case. Mitchell, 75 F.3d at 523. Additionally, plaintiff has no right to be 17 present during a cell search. Block v. Rutherford, 468 U.S. 576, 591 (1984) (per curiam). 18 Accordingly, plaintiff’s allegation that officers conducted an unauthorized search and that 19 he was not allowed to be present for the search fails to state a cognizable claim. 20 B. Excessive Force 21 It is not clear from the allegations in the complaint whether plaintiff was a pretrial 22 detainee, or a convicted inmate housed at the Shasta County Jail. The Eighth Amendment 23 prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The 24 unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by 25 the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 26 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor 27 negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and wantonness, not 28 //// 1 inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and 2 Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 3 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 4 restraints on prison officials, who may not ... use excessive physical force against prisoners.” 5 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992) ). 6 “[W]henever prison officials stand accused of using excessive physical force in violation of the 7 [Eighth Amendment], the core judicial inquiry is ... whether force was applied in a good-faith 8 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 9 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 (1986) ). 10 Pretrial detainees are afforded greater protection under the constitution than prisoners. 11 Stone v. City of San Francisco, 968 F.2d 850, 857 n.10 (9th Cir. 1992). A pretrial detainee’s 12 right to be free from excessive force comes from the Due Process Clause of the Fourteenth 13 Amendment and not the Eighth Amendment. Kingsley v. Hendrickson, 576 U.S. 389 (2015). 14 Unless the plaintiff demonstrates that the defendant intended to punish the inmate, conditions or 15 restrictions that are reasonably related to legitimate penological objectives do not violate pretrial 16 detainees’ right to be free from punishment. See Block v. Rutherford, 468 U.S. 576, 584 (1984). 17 Pretrial detainee’s must show that the defendant purposely or knowingly used objectively 18 unreasonable force. Kingsley, 576 U.S. at 396. 19 Plaintiff has alleged that officers Stone and Benov squeezed his arms, yanked them, and 20 pulled him to the ground even though he was not resisting. The court finds such allegations are 21 sufficient to state a claim against these defendants under either standard. Castro v. County of Los 22 Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (under either the Eighth Amendment’s Cruel 23 and Unusual Clause or the Fourteenth Amendment’s Due Process Clause a “plaintiff must show 24 that the prison officials acted with ‘deliberate indifference’”). 25 C. Retaliation 26 Plaintiff appears to allege that adverse action was taken against him because “they didn’t 27 like plaintiff filing grievances complaining and threatening to file lawsuits and obtaining their 28 //// 1 info during the course of litigation.” (ECF No. 16 at 5.) However, it is not clear if plaintiff 2 intends to bring a claim for violation of his rights under the First Amendment. 3 To state a claim for violation of his rights under the First Amendment a plaintiff must 4 allege the following: (1) “a state actor took some adverse action against an inmate (2) because of 5 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 6 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 7 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and citations 8 omitted). 9 The allegations are not sufficient to state a claim because plaintiff has not specified which 10 defendants retaliated against him. He also has not stated facts showing that the cell search and 11 excessive use of force was the motivation for the identified defendants taking action against him. 12 In any amended complaint, plaintiff should specify which defendants took adverse action against 13 him and some fact showing that those defendants were motivated to take such adverse action 14 because plaintiff filed grievances. 15 IV. Amending the Complaint 16 As set forth above, plaintiff has stated a potentially cognizable excessive force claim 17 against defendants Stone and Benov. The complaint does not contain any additional claims. 18 However, plaintiff will have the option to proceed with the complaint as screened or file an 19 amended complaint. 20 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 21 and the action that defendant took that violated his constitutional rights. The court is not required 22 to review exhibits to determine what plaintiff’s charging allegations are as to each named 23 defendant. The charging allegations must be set forth in the amended complaint, so defendants 24 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 25 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 26 each claim. See Fed. R. Civ. P. 8(a). 27 Any amended complaint must show the federal court has jurisdiction, the action is brought 28 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 1 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 2 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 4 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 5 he is legally required to do that causes the alleged deprivation). 6 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 7 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 8 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 9 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 10 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 11 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 12 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 13 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 14 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 15 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 16 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 17 An amended complaint must be complete in itself without reference to any prior pleading. 18 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 19 Any amended complaint should contain all of the allegations related to his claim in this action. If 20 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 21 complaint. 22 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 23 has evidentiary support for his allegations, and for violation of this rule the court may impose 24 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 25 //// 26 //// 27 //// 28 //// 2 For the reasons set forth above, IT IS HEREBY ORDERED that: 3 1. Plaintiff states a potentially cognizable excessive force claim against defendants Stone 4 | and Benov as set forth in Section III above. The complaint does not contain any additional 5 | cognizable claims. Accordingly, plaintiff will have the option of proceedings with the complaint 6 | as screened or filing an amended complaint. 7 2. Within sixty (60) days of the date of this order, plaintiff shall fill out and return the 8 || attached form indicating how he would like to proceed in this action. 9 3. Plaintiff is warned that his failure to comply with this order will result in a 10 || recommendation that this action be dismissed. 11 | Dated: May 21, 2021 Man 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 pp:12 DB//DB Prisoner Inbox/Civil.Rights/S/hern 1661 scrn3 21 22 23 24 25 26 27 28
1 2 3
4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 ANTHONY C. HERNANDEZ, No. 2:20-cv-1661 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 ALLEN, et al., 13 Defendants. 14 Check one: 15 _____ Plaintiff wants to proceed immediately on his excessive force claim against defendants 16 Stone and Benov. Plaintiff understands that by going forward without amending the 17 complaint he is voluntarily dismissing all other claims and defendants. 18
19 _____ Plaintiff wants to amend the complaint. 20
21 DATED:_______________________ 22
23 Anthony Hernandez 24 Plaintiff pro se
27 28