1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2:21-cv-0997-CKD P 12 Plaintiff, 13 v. ORDER 14 K. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state inmate 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). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Standard 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, 127 S. Ct. 2197, 2200 (2007), 24 and 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 a prisoner at the 28 California Medical Facility (“CMF”). Plaintiff names six correctional officers and one 1 psychiatric technician as defendants in this action. Between May 30, 2021 and June 1, 2021, 2 defendant K. Johnson denied plaintiff food, water in his cell, his medication, and any incoming 3 legal mail in retaliation for plaintiff’s prior lawsuits and complaints against prison staff. 4 Defendant Gough was the correctional officer responsible for turning off the water to plaintiff’s 5 cell and defendants Davis and Clark denied plaintiff his meal trays on May 31, 2021. Defendant 6 Denbero refused to turn the water back on in plaintiff’s cell because plaintiff had filed lawsuits 7 against Denbero’s co-workers. Plaintiff also alleges that his inmate grievance forms were 8 removed from the appeals box by defendant Perez in order to prevent him from filing more 9 lawsuits. Defendant Gough threatened to bring his Glock into plaintiff’s cell and blow his head 10 off. On a separate occasion, defendant Davis threatened to bring his gun into plaintiff’s cell and 11 “pop one off.” ECF No. 1 at 6. By way of relief, plaintiff seeks compensatory and punitive 12 damages as well as injunctive relief. 13 III. Legal Standards 14 The following legal standards are being provided to plaintiff based on his pro se status as 15 well as the nature of the allegations in his complaint. 16 A. Linkage 17 The civil rights statute requires that there be an actual connection or link between the 18 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 19 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 20 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 21 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 22 in another's affirmative acts or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 25 link each named defendant with some affirmative act or omission that demonstrates a violation of 26 plaintiff's federal rights. 27 B. Supervisory Liability 28 Government officials may not be held liable for the unconstitutional conduct of their 1 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 2 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 3 each Government official, his or her title notwithstanding is only liable for his or her own 4 misconduct.”).
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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 KAREEM J. HOWELL, No. 2:21-cv-0997-CKD P 12 Plaintiff, 13 v. ORDER 14 K. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state inmate 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). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Standard 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, 127 S. Ct. 2197, 2200 (2007), 24 and 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 a prisoner at the 28 California Medical Facility (“CMF”). Plaintiff names six correctional officers and one 1 psychiatric technician as defendants in this action. Between May 30, 2021 and June 1, 2021, 2 defendant K. Johnson denied plaintiff food, water in his cell, his medication, and any incoming 3 legal mail in retaliation for plaintiff’s prior lawsuits and complaints against prison staff. 4 Defendant Gough was the correctional officer responsible for turning off the water to plaintiff’s 5 cell and defendants Davis and Clark denied plaintiff his meal trays on May 31, 2021. Defendant 6 Denbero refused to turn the water back on in plaintiff’s cell because plaintiff had filed lawsuits 7 against Denbero’s co-workers. Plaintiff also alleges that his inmate grievance forms were 8 removed from the appeals box by defendant Perez in order to prevent him from filing more 9 lawsuits. Defendant Gough threatened to bring his Glock into plaintiff’s cell and blow his head 10 off. On a separate occasion, defendant Davis threatened to bring his gun into plaintiff’s cell and 11 “pop one off.” ECF No. 1 at 6. By way of relief, plaintiff seeks compensatory and punitive 12 damages as well as injunctive relief. 13 III. Legal Standards 14 The following legal standards are being provided to plaintiff based on his pro se status as 15 well as the nature of the allegations in his complaint. 16 A. Linkage 17 The civil rights statute requires that there be an actual connection or link between the 18 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 19 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 20 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 21 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 22 in another's affirmative acts or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 25 link each named defendant with some affirmative act or omission that demonstrates a violation of 26 plaintiff's federal rights. 27 B. Supervisory Liability 28 Government officials may not be held liable for the unconstitutional conduct of their 1 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 2 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 3 each Government official, his or her title notwithstanding is only liable for his or her own 4 misconduct.”). When the named defendant holds a supervisory position, the causal link between 5 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 6 plaintiff must allege some facts indicating that the defendant either personally participated in or 7 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 8 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 9 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 10 C. Verbal Threats 11 An inmate's Eighth Amendment rights are violated by a prison official if that official 12 exposes an inmate to a “substantial risk of serious harm,” while displaying “deliberate 13 indifference” to that risk. Farmer, 511 U.S. at 834. However, the verbal exchange of offensive 14 insults between inmates and guards does not rise to the level of an Eighth Amendment violation. 15 See Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012); see also Keenan v. Hall, 83 F.3d 16 1083, 1092 (9th Cir. 1996) (citation omitted) (stating that “verbal harassment generally does not 17 violate the Eighth Amendment”), amended on other grounds by 135 F.3d 1318 (9th Cir. 1998); 18 Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (finding that a mere threat does not constitute a 19 constitutional wrong, nor do allegations that a naked threat that was for purpose of denying access 20 to courts compel a contrary result). 21 D. Access to Courts 22 Plaintiff has a constitutional right of access to the courts and prison officials may not 23 actively interfere with his right to litigate. Silva v. Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 24 2011). Prisoners also enjoy some degree of First Amendment rights in their legal 25 correspondence. Bounds v. Smith, 430 U.S. 817, 824-25 (1977). However, to state a viable 26 claim for relief, plaintiff must allege he suffered an actual injury, which is prejudice with respect 27 to contemplated or existing litigation, such as the inability to meet a filing deadline or present a 28 non-frivolous claim. Lewis v. Casey, 518 U.S. 343, 349 (1996). 1 E. Mail Interference 2 Under the First Amendment, prisoners have a right to send and receive mail. Witherow v. 3 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, a prison may adopt regulations or 4 practices for inmate mail which limit a prisoner’s First Amendment rights as long as the 5 regulations are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 6 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 when it is not a content-based regulation). Generally, such isolated incidents 16 must be accompanied by evidence of an improper motive on the part of prison officials or result 17 in interference with an inmate’s right of access to the courts or counsel in order to rise to the level 18 of a constitutional violation. See Smith, 899 F.2d at 944. 19 IV. Analysis 20 After conducting the required screening, the court finds that plaintiff sufficiently alleges 21 First Amendment retaliation claims against defendants K. Johnson, J. Davis, D. Clark, A. Gough, 22 B. Denbero, and A. Perez; an Eighth Amendment claim of deliberate indifference to plaintiff’s 23 serious medical needs requiring medication against defendant K. Johnson; and an Eighth 24 Amendment challenge to the conditions of plaintiff’s confinement against defendant K. Johnson. 25 However, for the reasons discussed below, plaintiff fails to state any other cognizable claims. 26 The complaint does not link defendant Houston to any of the asserted constitutional violations. 27 His position as a supervisor does not make him liable for the constitutional violations of his 28 subordinates. See Iqbal, 556 U.S. at 677. With respect to the allegations of mail tampering, it 1 does not appear to the court that plaintiff has stated a separate First Amendment claim other than 2 that which is based on retaliation. See Crofton v. Roe, 170 F.3d at 961. The court further finds 3 that the allegations in the complaint are not sufficient to state a First Amendment claim for denial 4 of access to the courts against defendant Johnson because plaintiff does not allege any prejudice 5 to a pending or contemplated court case. See Lewis v. Casey, 518 U.S. 343, 349 (1996). Plaintiff 6 has been provided with the applicable legal standards for these claims and will be given an 7 opportunity to file an amended complaint to attempt to cure the defects in his pleading. Thus, 8 plaintiff may choose to proceed on the claims found cognizable against defendants K. Johnson, J. 9 Davis, D. Clark, Gough, Denbero, and Perez, or he may attempt to cure the defects in his pleading 10 by filing a first amended complaint. 11 Plaintiff may elect to amend his complaint to attempt to cure the deficiencies identified in 12 this screening order. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 13 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 14 their complaints). If plaintiff chooses to proceed on the Fourth Amendment excessive force claim 15 against defendant Ross found cognizable in this screening order, the court will construe this as a 16 request to voluntarily dismiss the additional claims and defendants pursuant to Rule 41(a)(1)(i) of 17 the Federal Rules of Civil Procedure. 18 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 19 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 20 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 21 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 22 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 23 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 24 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 25 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 27 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. This is because, as a 1 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 2 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 3 longer serves any function in the case. Therefore, in an amended complaint, as in an original 4 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 5 V. Plain Language Summary for Pro Se Party 6 The following information is meant to explain this order in plain English and is not 7 intended as legal advice. 8 Some of the allegations in the complaint state claims for relief against the defendants, and 9 some do not. You must decide if you want to (1) proceed immediately on the First Amendment 10 retaliation claims against defendants K. Johnson, J. Davis, D. Clark, A. Gough, B. Denbero, and 11 A. Perez; the Eighth Amendment deliberate indifference claim against defendant K. Johnson; and 12 the Eighth Amendment challenge to the conditions of confinement against defendant K. Johnson; 13 OR, 2) amend the complaint to fix the problems identified in this order with respect to the 14 remaining claims and defendants. Once you decide, you must complete the attached Notice of 15 Election form by checking only one box and returning it to the court. 16 Once the court receives the Notice of Election, it will issue an order telling you what you 17 need to do next. If you do not return this Notice, the court will order service of the complaint 18 only on the claims found cognizable in this screening order and will recommend dismissing the 19 remaining claims. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff has the option to proceed immediately on the First Amendment retaliation 22 claims against defendants K. Johnson, J. Davis, D. Clark, A. Gough, B. Denbero, and 23 A. Perez; an Eighth Amendment deliberate indifference claim against defendant K. 24 Johnson; and an Eighth Amendment challenge to the conditions of confinement 25 against defendant K. Johnson. In the alternative, plaintiff may choose to amend the 26 complaint to fix the deficiencies identified in this order with respect to the remaining 27 claims and defendants. 28 2. Within 21 days from the date of this order, plaintiff shall complete and return the ] attached Notice of Election form notifying the court whether he wants to proceed on 2 the screened complaint or whether he wants time to file a first amended complaint. 3 3. If plaintiff fails to return the attached Notice of Election within the time provided, the 4 court will construe this failure as consent to dismiss the deficient claims and proceed 5 only on the cognizable claims identified above. 6 | Dated: August 13, 2021 □□ / del a 7 CAROLYNK. DELANEY 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 12/cros0766.option.docx 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 KAREEM J HOWELL, No. 2:21-cv-0997-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 K. JOHNSON, et al., 15 Defendants. 16 17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the First Amendment retaliation claims against 19 defendants K. Johnson, J. Davis, D. Clark, A. Gough, B. Denbero, and A. Perez; the Eighth 20 Amendment deliberate indifference claim against defendant K. Johnson; and the Eighth 21 Amendment challenge to the conditions of confinement against defendant K. Johnson. Plaintiff 22 voluntarily dismisses the remaining claims and defendants; OR 23 _____ Plaintiff wants time to file a first amended complaint. 24 DATED: 25 26 ____________________ 27 Plaintiff