1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CEASAR HERNANDEZ, No. 2:20-cv-02375-JAM-CKD P 12 Plaintiff, 13 v. ORDER 14 MARTICHICK, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s first amended complaint. 20 ECF No. 12. 21 I. Screening Standard 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 II. Allegations in the Complaint 19 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 20 California Health Care Facility. Starting on August 31, 2020, defendant Brunner endangered 21 plaintiff’s safety by calling him a “weirdo” in front of other inmates. ECF No. 12 at 8. As a 22 result, inmates started asking plaintiff if he was a child molester, sex offender, or rapist. ECF No. 23 12 at 8. Plaintiff informed defendants Martichick, Brunner, Tardd, Seacho, and Toa that he had 24 enemy and safety concerns, but they all refused to remove him from the unit or rehouse him. 25 ECF NO. 12 at 8-11. Defendants Richardson and DeJesus failed to respond to plaintiff’s inmate 26 appeals about his safety concerns. Plaintiff also alleges that defendants Brunner, Tardd, Seacho, 27 and Toa confiscated his property and placed him on suicide watch in October 23, 2020 based on 28 his inmate appeals and lawsuits. ECF No. 12 at 10-11, 16. The amended complaint also 1 generally alleges that a new form of infrared technology is being used by the prison warden and 2 correctional staff to monitor plaintiff’s thoughts and mail. By way of relief, plaintiff seeks 3 compensatory damages and injunctive relief. ECF No. 12 at 20. 4 III. Legal Standards 5 The following legal standards are being provided to plaintiff based on his pro se status as 6 well as the nature of the allegations in his complaint. 7 A. Linkage 8 The civil rights 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. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 12 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 13 in another's affirmative acts or omits to perform an act which he is legally required to do that 14 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 15 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 16 link each named defendant with some affirmative act or omission that demonstrates a violation of 17 plaintiff's federal rights. 18 B. Supervisory Liability 19 Government officials may not be held liable for the unconstitutional conduct of their 20 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 21 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 22 each Government official, his or her title notwithstanding is only liable for his or her own 23 misconduct.”). When the named defendant holds a supervisory position, the causal link between 24 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 25 plaintiff must allege some facts indicating that the defendant either personally participated in or 26 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 27 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 28 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 1 C. Mail Tampering 2 Under the First Amendment, prisoners also have a right to send and receive mail. 3 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, a prison may adopt 4 regulations or practices for inmate mail which limit a prisoner’s First Amendment rights as long 5 as the regulations are “reasonably related to legitimate penological interests.” Turner 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 ANTHONY CEASAR HERNANDEZ, No. 2:20-cv-02375-JAM-CKD P 12 Plaintiff, 13 v. ORDER 14 MARTICHICK, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s first amended complaint. 20 ECF No. 12. 21 I. Screening Standard 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 II. Allegations in the Complaint 19 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 20 California Health Care Facility. Starting on August 31, 2020, defendant Brunner endangered 21 plaintiff’s safety by calling him a “weirdo” in front of other inmates. ECF No. 12 at 8. As a 22 result, inmates started asking plaintiff if he was a child molester, sex offender, or rapist. ECF No. 23 12 at 8. Plaintiff informed defendants Martichick, Brunner, Tardd, Seacho, and Toa that he had 24 enemy and safety concerns, but they all refused to remove him from the unit or rehouse him. 25 ECF NO. 12 at 8-11. Defendants Richardson and DeJesus failed to respond to plaintiff’s inmate 26 appeals about his safety concerns. Plaintiff also alleges that defendants Brunner, Tardd, Seacho, 27 and Toa confiscated his property and placed him on suicide watch in October 23, 2020 based on 28 his inmate appeals and lawsuits. ECF No. 12 at 10-11, 16. The amended complaint also 1 generally alleges that a new form of infrared technology is being used by the prison warden and 2 correctional staff to monitor plaintiff’s thoughts and mail. By way of relief, plaintiff seeks 3 compensatory damages and injunctive relief. ECF No. 12 at 20. 4 III. Legal Standards 5 The following legal standards are being provided to plaintiff based on his pro se status as 6 well as the nature of the allegations in his complaint. 7 A. Linkage 8 The civil rights 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. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 12 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 13 in another's affirmative acts or omits to perform an act which he is legally required to do that 14 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 15 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 16 link each named defendant with some affirmative act or omission that demonstrates a violation of 17 plaintiff's federal rights. 18 B. Supervisory Liability 19 Government officials may not be held liable for the unconstitutional conduct of their 20 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 21 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 22 each Government official, his or her title notwithstanding is only liable for his or her own 23 misconduct.”). When the named defendant holds a supervisory position, the causal link between 24 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 25 plaintiff must allege some facts indicating that the defendant either personally participated in or 26 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 27 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 28 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 1 C. Mail Tampering 2 Under the First Amendment, prisoners also have a right to send and receive mail. 3 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, a prison may adopt 4 regulations or practices for inmate mail which limit a prisoner’s First Amendment rights as long 5 as the regulations are “reasonably related to legitimate penological interests.” Turner v. Safley, 6 482 U.S. 78, 89, (1987). “When a prison regulation affects outgoing mail as opposed to incoming 7 mail, there must be a ‘closer fit between the regulation and the purpose it serves.’” Witherow, 52 8 F.3d at 265 (quoting Thornburgh v. Abbott, 490 U.S. 401, 412 (1989)). Courts have also 9 afforded greater protection to legal mail than non-legal mail. See Thornburgh, 490 U.S. at 413. 10 Isolated incidents of mail interference or tampering will not support a claim under section 1983 11 for violation of plaintiff's constitutional rights. See Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 12 2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Smith v. Maschner, 899 F.2d 940, 13 944 (10th Cir. 1990); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (emphasizing 14 that a temporary delay or isolated incident of delay of mail does not violate a prisoner's First 15 Amendment rights). Generally, such isolated incidents must be accompanied by evidence of an 16 improper motive on the part of prison officials or result in interference with an inmate’s right of 17 access to the courts or counsel in order to rise to the level of a constitutional violation. See Smith, 18 899 F.2d at 944. 19 D. Inmate Appeals 20 The existence of a prison grievance procedure establishes a procedural right only and 21 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 22 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 23 (no liberty interest in processing of appeals because no entitlement to a specific grievance 24 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 25 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 26 cause or participate in the violations are responsible. Ruling against a prisoner on an 27 administrative complaint does not cause or contribute to the violation. A guard who stands and 28 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 1 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 2 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 3 IV. Analysis 4 After conducting the required screening, the court finds that plaintiff may proceed on the 5 First and Eighth Amendment claims against defendants Martichick, Brunner, Tardd, Seacho, and 6 Toa. However, plaintiff has failed to state a claim against defendants Richardson and DeJesus 7 based on their handling of plaintiff’s inmate appeals. Additionally, plaintiff has failed to connect 8 defendant Peterson, the Warden at CHCF, to any of the asserted constitutional violations. 9 Plaintiff may elect to amend his complaint to attempt to cure the deficiencies with respect to these 10 defendants. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (district 11 courts must afford pro se litigants an opportunity to amend to correct any deficiency in their 12 complaints). If plaintiff chooses to proceed on the First and Eighth Amendment claims against 13 defendants Martichick, Brunner, Tardd, Seacho, and Toa found cognizable in this screening 14 order, the court will construe this as a request to voluntarily dismiss the additional claims 15 pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 18 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 19 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 20 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 21 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 22 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 23 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 25 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This is because, as a 27 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 28 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 1 longer serves any function in the case. Therefore, in an amended complaint, as in an original 2 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 3 V. Plain Language Summary for Pro Se Party 4 The following information is meant to explain this order in plain English and is not 5 intended as legal advice. 6 Some of the allegations in the complaint state claims for relief against the defendants, and 7 some do not. You must decide if you want to (1) proceed immediately on the First and Eighth 8 Amendment claims against defendants Martichick, Brunner, Tardd, Seacho, and Toa; or, (2) 9 amend the complaint to fix the problems identified in this order with respect to the remaining 10 claims. Once you decide, you must complete the attached Notice of Election form by 11 checking only one box and returning it to the court. 12 Once the court receives the Notice of Election, it will issue an order telling you what you 13 need to do next. If you do not return this Notice, the court will order service of the complaint 14 only on the claims found cognizable in this screening order and will recommend dismissing the 15 remaining claims. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff has the option to proceed immediately on the First and Eighth Amendment 18 claims against defendants Martichick, Brunner, Tardd, Seacho, and Toa. In the 19 alternative, plaintiff may choose to amend the complaint to fix the deficiencies 20 identified in this order with respect to the remaining claims. 21 2. Within 21 days from the date of this order, plaintiff shall complete and return the 22 attached Notice of Election form notifying the court whether he wants to proceed on 23 the screened complaint or whether he wants time to file a second amended complaint. 24 3. If plaintiff fails to return the attached Notice of Election within the time provided, the 25 court will construe this failure as consent to dismiss the deficient claims and proceed 26 only on the cognizable claims identified above. 27 ///// 28 1 | Dated: August 3, 2021 ( / we } ft | / } a ? CAROLYN DELANEY? SS 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 12/hern2375.option.docx 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CEASAR HERNANDEZ, No. 2:20-cv-02375-JAM-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 MARTICHICK, et al., 15 Defendants. 16 17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the First and Eighth Amendment claims 19 against defendants Martichick, Brunner, Tardd, Seacho, and Toa. Plaintiff voluntarily dismisses 20 the remaining claims; or 21 _____ Plaintiff wants time to file a second amended complaint. 22 23 DATED: 24 25 ____________________ 26 Plaintiff