(PC) Miles v. Petersen

• Court: District Court, E.D. California
• Decided: July 6, 2020
• Docket: 2:20-cv-00807
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGIA MILES, No. 2:20-cv-0807 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICE PETERSEN, et al., 15 Defendants. 16 17 Plaintiff is a former Plumas County jail inmate, proceeding pro se. Plaintiff seeks relief 18 pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 19 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is 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 is 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 is obligated to make monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 1 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 2 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 Screening Standards 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 legally 8 “frivolous or malicious,” that 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)(1), (2). 10 A claim is legally frivolous when 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). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 The Civil Rights Act 7 The Civil Rights Act under which this action was filed provides as follows: 8 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 9 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, 10 or other proper proceeding for redress. 11 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 12 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 13 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 14 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 15 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 16 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 17 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 18 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 19 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 20 588 F.2d 740, 743 (9th Cir. 1978). 21 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 22 their employees under a theory of respondeat superior and, therefore, when a named defendant 23 holds a supervisorial position, the causal link between him and the claimed constitutional 24 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 25 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 26 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 27 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 28 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 1 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 2 participation is insufficient). 3 Plaintiff’s Allegations 4 In her complaint, plaintiff names Patrice Petersen, Judge Giordiano, and the Plumas 5 County Sheriff’s Office/Jail as defendants. Plaintiff claims a violation of all her constitutional 6 rights, based on the following: basic necessities, mail, property, threat to safety, access to the 7 court, medical care, retaliation, medical malpractice, malfeasance, disciplinary proceedings, civil 8 harassment, and excessive force. (ECF No. 1 at 3-5.) As relief, plaintiff seeks “a new judge;” an 9 order prohibiting defendant Petersen from “stalking and harassing” the courts, plaintiff, and her 10 family; reimbursement for all of plaintiff’s lost property, and an apology. (ECF No. 1 at 6.) 11 Discussion 12 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 13 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 14 court has determined that the complaint does not contain a short and plain statement as required 15 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 16 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 17 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 18 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. 19 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the 20 complaint must be dismissed. The court, however, grants leave to file an amended complaint. 21 In an effort to assist plaintiff in amending her complaint, she is advised of the following. 22 Judicial Immunity 23 The Supreme Court has held that judges acting within the course and scope of their 24 judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 25 386 U.S. 547 (1967). A judge’s jurisdiction is quite broad. Moreover, a federal district court 26 does not have jurisdiction to review errors in state court decisions in civil cases. Dist. of 27 Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 28 263 U.S. 413, 415 (1923). “The district court lacks subject matter jurisdiction either to conduct a 1 direct review of a state court judgment or to scrutinize the state court’s application of various 2 rules and procedures pertaining to the state case.” Samuel v. Michaud, 980 F. Supp. 1381, 1411- 3 12 (D. Idaho 1996), aff’d, 129 F.3d 127 (9th Cir. 1997). See also Branson v. Nott, 62 F.3d 287, 4 291-92 (9th Cir.1995) (finding no subject matter jurisdiction over section 1983 claim seeking, 5 inter alia, implicit reversal of state trial court action); MacKay v. Pfeil, 827 F.2d 540, 544-45 (9th 6 Cir. 1987) (attacking state court judgment because substantive defense improper under Rooker- 7 Feldman). That the federal district court action alleges the state court’s action was 8 unconstitutional does not change the rule. Feldman, 460 U.S. at 486. 9 Property Claims 10 The United States Supreme Court has held that “an unauthorized intentional deprivation 11 of property by a state employee does not constitute a violation of the procedural requirements of 12 the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for 13 the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state 14 provides a meaningful postdeprivation remedy, only authorized, intentional deprivations 15 constitute actionable violations of the Due Process Clause. An authorized deprivation is one 16 carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 17 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 18 1149 (9th Cir. 1987). Here, plaintiff has not alleged any facts which suggest that the deprivation 19 was authorized. The California Legislature has provided a remedy for tort claims against public 20 officials in the California Government Code, §§ 900, et seq. Because plaintiff has not attempted 21 to seek redress in the state system, she cannot sue in federal court on the claim that the state 22 deprived her of property without due process of the law. 23 Harassment/Defamation1 24 Allegations of harassment, embarrassment, and defamation are not cognizable under 25 section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir.1981), aff’d sub 26 1 On May 4, 2020, plaintiff filed a motion seeking a court order prohibiting defendant Petersen 27 from engaging in libel or slander. (ECF No. 3.) However, because plaintiff cannot state a cognizable civil rights claim based on defamation, libel, or slander, plaintiff’s motion is denied 28 without prejudice. 1 nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 1337, 1344 2 (9th Cir. 1982) (allegations of harassment with regards to medical problems not cognizable); 3 Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner does not have 4 cause of action under § 1983 for being called obscene name by prison employee); Batton v. North 5 Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by prison officials does 6 not state claim under § 1983). Nor are allegations of mere threats cognizable. See Gaut v. Sunn, 7 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor do 8 allegations that naked threat was for purpose of denying access to courts compel contrary result). 9 Medical Claims 10 Deliberate indifference to a serious medical need violates the Eighth Amendment’s 11 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 12 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 13 WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of 14 “deliberate indifference” involves an examination of two elements: the seriousness of the 15 prisoner’s medical need and the nature of the defendant’s response to that need. See McGuckin, 16 974 F.2d at 1059. 17 Where, as here, the inmate is a pretrial detainee rather than a convicted prisoner, the 18 inmate’s rights derive from the Fourteenth Amendment’s Due Process Clause rather than the 19 Eighth Amendment’s Cruel and Unusual Punishments Clause. See Gibson v. County of Washoe, 20 290 F.3d 1175, 1187 (9th Cir. 2002) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). In other 21 words, deliberate indifference to a pretrial detainee’s serious medical needs violates the 22 Fourteenth Amendment’s Due Process Clause. Although a deliberate indifference test applies to 23 a pretrial detainee’s claim, it is an objective deliberate indifference test, rather than the subjective 24 deliberate indifference test applicable to a prisoner’s claim. See Gordon v. County of Orange, 25 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated under an objective deliberate 26 indifference standard. 27 [T]he elements of a pretrial detainee’s medical care claim against an individual defendant under the due process clause of the Fourteenth 28 Amendment are: (i) the defendant made an intentional decision with 1 respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering 2 serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the 3 circumstances would have appreciated the high degree of risk involved -- making the consequences of the defendant’s conduct 4 obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 5 6 Id. at 1125. With regard to the third element, the defendant’s conduct must be objectively 7 unreasonable -- “a test that will necessarily turn[ ] on the facts and circumstances of each 8 particular care.” Id. (citations and internal quotation marks omitted). “Indifference may appear 9 when prison officials deny, delay or intentionally interfere with medical treatment, or it may be 10 shown by the way in which prison physicians provide medical care.” Jett v. Penner, 439 F.3d 11 1091, 1096 (9th Cir. 2006.) (internal quotation marks omitted). The four-part test articulated in 12 Gordon requires the inmate to prove more than negligence, but less than subjective intent -- 13 something akin to reckless disregard. Gordon, 888 F.3d at 1125. 14 Improper Joinder 15 Plaintiff’s disparate claims comprise a “shotgun” or “kitchen sink” complaint, where she 16 raises unrelated claims against unrelated defendants. Thus, the complaint also does not comply 17 with Rule 20(a)(2) of the Federal Rules of Civil Procedure, which provides that the right to relief 18 against multiple defendants must arise out of common events and reflect common questions of 19 law or fact. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[u]nrelated claims against 20 different defendants belong in different suits.”). In any amended complaint, plaintiff should limit 21 her claims to those that arise from common questions of law or fact; alternatively, plaintiff may 22 name a single defendant and bring such claims as she may have against that defendant, see Fed. 23 R. Civ. P. 18(a). 24 Leave to Amend 25 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 26 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 27 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 28 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 1 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 2 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 3 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 4 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 5 268 (9th Cir. 1982). 6 Plaintiff may not change the nature of this suit by alleging new, unrelated claims.2 See 7 Fed. R. Civ. P. 20(a)(2). Plaintiff is cautioned that violation of court orders may result in the 8 involuntary dismissal of this action. Fed. R. Civ. P. 41(b). 9 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 10 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 11 complaint be complete in itself without reference to any prior pleading. This requirement exists 12 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 13 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 14 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 15 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 16 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 17 and the involvement of each defendant must be sufficiently alleged. 18 Subsequent Motions 19 On June 22, 2020, plaintiff filed a notice regarding filing fees, and a motion to set aside 20 filing fees. Essentially, plaintiff contends she is indigent and does not have the funds to pay the 21 court’s filing fees and should be granted a waiver from having to pay the fees. (ECF Nos. 8, 9.)

22 2 As discussed above, a plaintiff may properly assert multiple claims against a single defendant. 23 Fed. Rule Civ. P. 18. Also, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or 24 arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 25 20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See George, 507 F.3d at 607. This rule is intended “not only to prevent the sort of morass [a multiple 26 claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing 27 fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” 28 George, 507 F.3d at 607. 1 However, as discussed above, the court is required to impose filing fees. Thus, plaintiff’s motion 2 is denied. 3 On June 22, 2020, plaintiff also filed a motion to “postpone all motions until COVID[-19 4 pandemic] restrictions are lifted.” (ECF No. 10 at 1.) However, plaintiff did not sign her motion. 5 First, parties proceeding without counsel are required to sign all pleadings, motions, and other 6 papers submitted to the court for filing. Fed. R. Civ. P. 11(a). Second, plaintiff is advised that as 7 a pro se litigant, she is required to prosecute her court action. Despite the pandemic, this court 8 case is proceeding, and will not be postponed for an indefinite period. 9 Conclusion 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF Nos. 11, 12) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 Director, California Department of Mental Health filed concurrently herewith. 16 3. Plaintiff’s complaint is dismissed. 17 4. Within sixty days from the date of this order, plaintiff shall complete the attached 18 Notice of Amendment and submit the following documents to the court: 19 a. The completed Notice of Amendment; and 20 b. An original and one copy of the Amended Complaint. 21 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 22 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 23 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 24 Failure to file an amended complaint in accordance with this order may result in the 25 dismissal of this action. 26 5. Plaintiff’s motion (ECF No. 5) is denied without prejudice. 27 //// 28 6. Plaintiff’s motions (ECF No. 9, 10) are denied. MAS 2 OU EU PERINUINGIN MVVUPEOCTIL to POMOC Ve Oy AV VE tt

1 | Dated: July 6, 2020 Frese Arn 3 KENDALL J. NE /mile0807.14n UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGIA MILES, No. 2:20-cv-0807 TLN KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 PATRICE PETERSEN, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint DATED: 20

21 ________________________________ Plaintiff 22 23 24 25 26 27 28