(PC) Thomas v. Weaver

• Court: District Court, E.D. California
• Decided: December 20, 2022
• Docket: 1:22-cv-01492
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRENTICE R. THOMAS, Case No. 1:22-cv-01492-BAM 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AN 13 v. AMENDED COMPLAINT 14 B. WEAVER, et al., Doc. 1 15 Defendants. THIRTY (30) DAY DEADLINE 16 Plaintiff Prentice R. Thomas (“Plaintiff”) is a county jail inmate proceeding pro se and 17 informa pauperis in this civil rights action. Plaintiff’s complaint is currently before the Court for 18 screening. (Doc. 1.) 19 I. Screening Requirement and Standard 20 The Court screens complaints brought by persons proceeding in pro se and in forma 21 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 22 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 23 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 24 U.S.C. § 1915(e)(2)(B)(ii). 25 A complaint must contain “a short and plain statement of the claim showing that the 26 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 3 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 4 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 5 To survive screening, Plaintiff’s claims must be facially plausible, which requires 6 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 7 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 8 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 9 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 10 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 11 II. Summary of Plaintiff’s Allegations 12 Plaintiff names as Defendants: (1) B. Weaver (#11520), officer at Fresno County Sheriff’s 13 Office, (2) Justin Garcia, Fresno Police Officer (P2019), (3) Adriana Ponce, Fresno Police Officer (P1716), and (4) Lily Hitchner, M.D. at Community Regional Medical Center (“CRMC”). 14 In claim 1, Plaintiff alleges a violation of Due Process. On September 8, 2022, while 15 Plaintiff was in the custody of B. Weaver, B. Weaver ordered registered nurse of CRMC to 16 assault Plaintiff. The RN tackled Plaintiff, Plaintiff hit his head on the hospital floor and severely 17 injured his back and caused mobility issues. Plaintiff also has a hard time sleeping because of the 18 nightmares from the assault and cannot hold his body fluids while sleeping. Plaintiff is not able 19 to hold an erection because of the actions of the registered nurse. 20 In claim 2, Plaintiff alleges a violation of medical care. On August 30, 2022, Plaintiff was 21 brought to the emergency room. Plaintiff complained of pain mostly caused by excessive force 22 by Officer Lily Hitchner, a witness did nothing to help Plaintiff. Plaintiff had been tased. Thirty 23 minutes after Plaintiff left CRMC, he was brought back and admitted into the hospital. Plaintiff 24 had died. Plaintiff was brought back “after he was given 3 cans for narcane after being found non 25 responsive by the Fresno County Jail Sheriff Officers.” On September 8, 2022, Plaintiff was 26 released from CRMC with a treatment plan that has not been followed by the Fresno County jail 27 medical staff of “Well Path.” On September 8, 2022, Plaintiff was assaulted by a registered nurse 28 1 at CRMC who was the same R.N. who was to care for Plaintiff’s medical needs while an inpatient 2 on the 9th floor. On September 8, 2022, the R.N. tackled Plaintiff and caused Plaintiff immense 3 back pain and mobility issues. 4 In claim 3, Plaintiff alleges a violation of his Due Process rights. On August 30, 2022, 5 Plaintiff was assaulted at CRMC by Justin Garcia (p2019) and officer Adriana Ponce (p1716) 6 while Plaintiff was talking to medical staff that Plaintiff was having chess pain and pain on his 7 left side of his body. Officers took turns applying pressure point holds on Plaintiff’s neck and 8 other areas. The officers forced Plaintiff to leave CRMC only to return 30 minutes later 9 nonresponsive. CRMC medical staff could not take Plaintiff’s blood pressure and other vitals 10 because Fresno Policy officers were crowding around Plaintiff’s bed side. Staff was unable to do 11 their job effectively. 12 As remedies, Plaintiff seeks compensatory and punitive damages. 13 III. Discussion Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 14 state a cognizable claim under 42 U.S.C. § 1983. Because he is proceeding pro se, Plaintiff will 15 be granted leave to amend his complaint to the extent that he can do so in good faith. To assist 16 Plaintiff, the Court provides the pleading and legal standards that appear relevant to his claims. 17 A. Federal Rule of Civil Procedure 8 18 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 19 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 20 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation 22 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 24 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; 25 see also Twombly, 550 U.S. at 556–557. 26 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic 27 matter, the complaint does not clearly allege Plaintiff must state sufficient factual support for each 28 1 claim. Plaintiff files an amended complaint, it should be a short and plain statement of his claims, 2 and must include factual allegations identifying what happened, when it happened and who was 3 involved. Fed. R. Civ. P. 8. 4 B. Federal Rules of Civil Procedure 18 and 20 5 The Court cannot determine if the allegations violate the rules against joinder. Plaintiff 6 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 7 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 8 607 (7th Cir. 2007); Mackey v. Price, 2020 WL 7319420, at *3–4 (E.D. Cal. Dec. 11, 2020), 9 report and recommendation adopted, 2021 WL 843462 (E.D. Cal. Mar. 5, 2021). Plaintiff may 10 bring a claim against multiple defendants so long as (1) the claim arises out of the same 11 transaction or occurrence, or series of transactions and occurrences, and (2) there are commons 12 questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th 13 Cir. 1997). The “same transaction” requirement refers to similarity in the factual background of a claim. Id. at 1349. Only if the defendants are properly joined under Rule 20(a) will the Court 14 review the other claims to determine if they may be joined under Rule 18(a), which permits the 15 joinder of multiple claims against the same party. 16 Plaintiff may not raise different claims against different defendants in a single action. For 17 instance, Plaintiff may not, in a single case, assert a claim related to the force used on August 30, 18 2022 with medical claims and use of force by different defendants on a different day such as 19 September 8, 2022. 20 C. Excessive Force 21 It is unclear if Plaintiff is a pretrial detainee or a convicted inmate. In any amended 22 complaint, Plaintiff must clarify whether he is a pretrial detainee or a convicted inmate, as the law 23 which applies will differ. The Court will assume he is a pretrial detainee. 24 A claim of excessive force in the context of an arrest or investigatory stop implicates the 25 Fourth Amendment right to be free from “unreasonable ... seizures.” U.S. Const. amend. IV; see 26 Graham v. Connor, 490 U.S. 386, 394 (1989). “Determining whether the force used to effect a 27 particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of 28 1 ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests’ against 2 the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citations omitted). 3 Whether a law enforcement officer’s use of force was “objectively reasonable” depends upon the 4 totality of the facts and circumstances confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 5 (9th Cir.) (en banc) (quoting Graham, 490 U.S. at 397), cert. denied, 545 U.S. 1128 (2005). 6 A court must “first assess the quantum of force used to arrest the plaintiff by considering 7 the type and amount of force inflicted.” Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th 8 Cir. 2003) (internal quotation marks and brackets omitted). Second, a court balances the 9 government’s countervailing interests. This involves considering “the severity of the crime at 10 issue, whether the suspect poses an immediate threat to the safety of the officers or others, and 11 whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. 12 at 396. Using these factors, a court must determine “whether the force employed was greater than 13 is reasonable under the circumstances.” Drummond, 343 F.3d at 1058. Here, Plaintiff fails to allege the circumstances surrounding the alleged use of force, 14 including when it happened, how it happened and who was involved. Plaintiff alleges he was 15 tased. But he does not allege who tased him and the circumstances surrounding the alleged use of 16 force. Plaintiff also alleges he was tackled by the R.N., but does not allege the circumstances 17 surrounding the event, what Plaintiff was doing, what was said or other facts about the 18 circumstance. As pled, the Court cannot find that Plaintiff has stated a cognizable excessive force 19 claim. 20 Plaintiff alleges that officer Justin Garcia (p2019) and officer Adriana Ponce (p1716) 21 assaulted him by applying pressure points. Again, Plaintiff does not allege the circumstances 22 surrounding the event, what Plaintiff was doing, what was said or other facts about the 23 circumstance. As pled, the Court cannot find that Plaintiff has stated a cognizable excessive force 24 claim. Likewise, Plaintiff does not provide any facts as to the alleged excessive force by 25 Defendant Hitchner. Conclusory allegations are insufficient. 26 D. Excessive Force by Registered Nurse 27 Plaintiff may be seeking to allege excessive force against the registered nurse who tackled 28 1 him. 2 Plaintiff, however, has not named the registered nurse as a defendant. The complaint’s 3 caption must contain the names of the defendants discussed in the body of the complaint. See 4 Fed. R. Civ. P. 10(a) (Rule 10(a) requires that plaintiffs include the names of all parties in the 5 caption of the complaint). The Court cannot have the complaint served on any of the parties 6 discussed in the body of the Complaint. See Soto v. Bd. of Prison Term, No. CIV S-06-2502 RRB 7 DAD P, 2007 WL 2947573, at *2 (E.D. Cal. Oct. 9, 2007) (The Court cannot order service of the 8 Complaint without the names of the parties included in the caption of the Complaint). Rule 10 of 9 the Federal Rules of Civil Procedure requires, among other things, that a complaint (a) state the 10 names of “all the parties” in the caption; and (b) state a party's claims in sequentially “numbered 11 paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10; 12 Callahan v. Unknown, No. 1:22-CV 00221 BAM PC, 2022 WL 1215260, at *3 (E.D. Cal. Apr. 13 25, 2022), report and recommendation adopted, No. 1:22-CV-221 JLT BAM, 2022 WL 1782559 (E.D. Cal. June 1, 2022). If Plaintiff does not know the identity of the person(s) responsible, he 14 may name them as “John Doe” or “Jane Doe.” 15 In addition, it appears that Plaintiff attempts to name a private individual as a defendant. 16 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal constitutional 17 or statutory right; and (2) that the violation was committed by a person acting under the color of 18 state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th 19 Cir. 2002). Private individuals and entities do not act under color of state law. See Van Ort v. 20 Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see also Kirtley v. Rainey, 326 F.3d 1088, 21 1092 (9th Cir. 2003) (“While generally not applicable to private parties, a § 1983 action can lie 22 against a private party” only if he is alleged to be “a willful participant in joint action with the 23 State or its agents.”) (citation and quotation marks omitted). “The United States Constitution 24 protects individual rights only from government action, not from private action.” Single Moms, 25 Inc. v. Mont. Power Co., 331 F.3d 743, 746–47 (9th Cir. 2003) (emphasis in original). 26 E. Deliberate Indifference to Medical Needs 27 It is unclear if Plaintiff is a pretrial detainee or a convicted inmate. In any amended 28 1 complaint, Plaintiff must clarify whether he is a pretrial detainee or a convicted inmate, as the law 2 which applies will differ. The Court will assume he is a pretrial detainee. 3 A claim of inadequate medical care brought by a pretrial detainee arises under the 4 Fourteenth Amendment and is governed by an “objective deliberate indifference standard.” See 5 Gordon v. County of Orange, 888 F.3d 1118, 1124-1125 (9th Cir. 2018). In order to state a claim 6 against any defendant for denial of medical care while a pretrial detainee, Plaintiff must allege 7 that the defendant: (1) “made an intentional decision with respect to the conditions under which 8 the plaintiff was confined”; (2) the “conditions put the plaintiff at substantial risk of suffering 9 serious harm”; (3) the “defendant did not take reasonable available measures to abate that risk, 10 even though a reasonable official in the circumstances would have appreciated the high degree of 11 risk involved—making the consequences of the defendant’s conduct obvious”; and (4) “by not 12 taking such measures, the defendant caused the plaintiff's injuries.” Gordon, 888 F.3d at 1125. 13 Plaintiff’s complaint does not adequately allege that any defendant provided inadequate medical care under an objective deliberate indifference standard. Plaintiff’s complaint does not 14 identify any individual defendant or appropriately link any defendant—named or otherwise—to 15 his claims of deliberate indifference to medical needs. In any amended complaint, Plaintiff 16 should clearly allege what happened, when it happened and who was involved. 17 Plaintiff alleges that some officers delayed Plaintiff getting medical care because they 18 were crowded around his bedside when medical staff came to give him medical care. Plaintiff 19 must allege factual support that each defendant “did not take reasonable available measures to 20 abate that risk, even though a reasonable official in the circumstances would have appreciated the 21 high degree of risk involved—making the consequences of the defendant's conduct obvious” or 22 that “by not taking such measures, the defendant caused the plaintiff's injuries.” Plaintiff must 23 allege facts that this conduct was objectively unreasonable, a test that will necessarily “turn[ ] on 24 the facts and circumstances of each particular case.” Gordon, 888 F.3d at 1125. 25 Plaintiff alleges his treatment plan was not followed, but fails to allege any defendant 26 responsible. However, “a difference in medical opinion does not constitute deliberate 27 indifference.” George v. Sonoma Cty. Sheriff's Dep't, 732 F. Supp. 2d 922, 937 (N.D. Cal. 2010) 28 1 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). “A difference of medical opinion may 2 amount to deliberate indifference if the prisoner shows that ‘the course of treatment was 3 medically unacceptable under the circumstances’ and defendants ‘chose this course in conscious 4 disregard of an excessive risk to [the prisoner's] health.’ ” Watson v. Veal, 302 F. App'x 654, 655 5 (9th Cir. 2008). 6 IV. Conclusion and Order 7 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 8 state a cognizable claim for relief. As Plaintiff is proceeding pro se, the Court will grant Plaintiff 9 an opportunity to amend his complaint to cure the identified deficiencies to the extent he is able to 10 do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 11 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 12 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 13 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 14 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 15 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 16 “buckshot” complaints). 17 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 18 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 19 complaint must be “complete in itself without reference to the prior or superseded pleading.” 20 Local Rule 220. 21 Based on the foregoing, it is HEREBY ORDERED that: 22 1. The Clerk’s Office shall send Plaintiff a complaint form; 23 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 24 amended complaint curing the deficiencies identified by the Court in this order (or file a notice of 25 voluntary dismissal); and 26 /// 27 /// 28 1 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 2 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order and 3 for failure to state a claim. 4 5 IT IS SO ORDERED.

6 Dated: December 20, 2022 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE

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