1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SETH PETER SHANNON, No. 2:22-cv-01065-CKD P 12 Plaintiff, 13 v. ORDER 14 H. GUDINO, et al., 15 Defendants. 16 17 Plaintiff is a county inmate proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(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 Requirement 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, 551 U.S. 89, 93-94 (2007), and 24 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 On March 8, 2022, while plaintiff was an inmate in the San Joaquin County Jail, he was 28 tasered and punched in the face by Officer Gudino, a named defendant in this civil action. 1 According to the complaint, plaintiff was complying with all of defendant Gudino’s orders and 2 was on the ground when he was tasered. Also named as defendants in this action are the San 3 Joaquin County Sheriff’s Office and the San Joaquin County Jail. By way of relief, plaintiff 4 seeks compensatory and punitive damages for the excessive force used against him. 5 III. Legal Standards 6 The following legal standards are being provided to plaintiff based on his pro se status as 7 well as the nature of the allegations in the complaint. 8 A. 42 U.S.C. §1983 Liability 9 “Section 1983 creates a private right of action against individuals who, acting under color 10 of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 11 1070, 1074 (9th Cir. 2001). “Persons” who may be sued under Section 1983 are “state and local 12 officials sued in their individual capacities, private individuals and entities which acted under 13 color of state law, and local governmental entities.” Vance v. Cty. of Santa Clara, 928 F. Supp. 14 993, 995-96 (N.D. Cal. 1996). The local jail is not a “person” subject to suit under Section 1983 15 and, therefore, is not a proper party. Powell v. Cook Cty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 16 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone's constitutional 17 rights ‘under color of law.’ Cook County Jail is not a ‘person….’”). 18 B. Linkage Requirement 19 The civil rights statute requires that there be an actual connection or link between the 20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 24 in another's affirmative acts or omits to perform an act which he is legally required to do that 25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 27 link each named defendant with some affirmative act or omission that demonstrates a violation of 28 plaintiff's federal rights. 1 C. Excessive Force 2 The complaint does not indicate whether plaintiff was a pretrial detainee or a convicted 3 inmate at the time of the use of force against him. Therefore, the court will provide plaintiff with 4 the legal standards governing both situations.
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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 SETH PETER SHANNON, No. 2:22-cv-01065-CKD P 12 Plaintiff, 13 v. ORDER 14 H. GUDINO, et al., 15 Defendants. 16 17 Plaintiff is a county inmate proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(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 Requirement 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, 551 U.S. 89, 93-94 (2007), and 24 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 On March 8, 2022, while plaintiff was an inmate in the San Joaquin County Jail, he was 28 tasered and punched in the face by Officer Gudino, a named defendant in this civil action. 1 According to the complaint, plaintiff was complying with all of defendant Gudino’s orders and 2 was on the ground when he was tasered. Also named as defendants in this action are the San 3 Joaquin County Sheriff’s Office and the San Joaquin County Jail. By way of relief, plaintiff 4 seeks compensatory and punitive damages for the excessive force used against him. 5 III. Legal Standards 6 The following legal standards are being provided to plaintiff based on his pro se status as 7 well as the nature of the allegations in the complaint. 8 A. 42 U.S.C. §1983 Liability 9 “Section 1983 creates a private right of action against individuals who, acting under color 10 of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 11 1070, 1074 (9th Cir. 2001). “Persons” who may be sued under Section 1983 are “state and local 12 officials sued in their individual capacities, private individuals and entities which acted under 13 color of state law, and local governmental entities.” Vance v. Cty. of Santa Clara, 928 F. Supp. 14 993, 995-96 (N.D. Cal. 1996). The local jail is not a “person” subject to suit under Section 1983 15 and, therefore, is not a proper party. Powell v. Cook Cty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 16 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone's constitutional 17 rights ‘under color of law.’ Cook County Jail is not a ‘person….’”). 18 B. Linkage Requirement 19 The civil rights statute requires that there be an actual connection or link between the 20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 24 in another's affirmative acts or omits to perform an act which he is legally required to do that 25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 27 link each named defendant with some affirmative act or omission that demonstrates a violation of 28 plaintiff's federal rights. 1 C. Excessive Force 2 The complaint does not indicate whether plaintiff was a pretrial detainee or a convicted 3 inmate at the time of the use of force against him. Therefore, the court will provide plaintiff with 4 the legal standards governing both situations. 5 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 6 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 7 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 8 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 9 core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore 10 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 11 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 12 injury, the need for application of force, the relationship between that need and the amount of 13 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 14 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 15 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 16 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 17 cause harm always violates contemporary standards of decency in violation of the Eighth 18 Amendment. Whitley, 475 U.S. at 327. 19 Unlike a convicted prisoner who must bring an excessive force claim under the Eighth 20 Amendment, a pretrial detainee brings an excessive force claim under the Fourteenth 21 Amendment. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). 22 To state an excessive force claim, plaintiff must allege that the officer's use of force was (1) 23 deliberate (in other words, purposeful or knowing); and (2) objectively unreasonable. Kingsley v. 24 Hendrickson, 135 S. Ct. 2466, 2472 (2015). With respect to the first element, an officer's 25 negligent or accidental use of force is not sufficient. Id. As to the second element, objective 26 reasonableness turns on the facts of each case, such as “the relationship between the need for the 27 use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by 28 the officer to temper or to limit the amount of force; the severity of the security problem at issue; 1 the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” 2 Id. at 2473. Objective reasonableness is assessed based on the information known to the officer 3 at the time. Id. at 2474. 4 IV. Analysis 5 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 6 which relief can be granted under federal law. First and foremost, plaintiff does not adequately 7 describe the circumstances surrounding the event about which he complains. The court is unable 8 to determine whether the use of force was done maliciously or sadistically for the purpose of 9 causing harm in violation of the Eighth Amendment, or was objectively unreasonable under the 10 Fourteenth Amendment. Additionally, plaintiff does not allege any injury, even a de minimis 11 one, that resulted from defendant Gudino’s actions. See Oliver v. Keller, 289 F.3d 623, 628 (9th 12 Cir. 2002) (clarifying that the standard used for Eighth Amendment excessive force claims 13 examines whether the use of physical force is more than de minimis and not whether the injury is 14 de minimis). Therefore, under either the Eighth or Fourteenth Amendment standards governing 15 excessive force claims, plaintiff does not allege sufficient facts to state an excessive force claim 16 against defendant Gudino. The remaining defendants are not linked to the alleged constitutional 17 violation, nor are they proper defendants in a § 1983 action since they are not “persons.” See 42 18 U.S.C. § 1983. For all these reasons, plaintiff’s complaint must be dismissed. The court will, 19 however, grant leave to file an amended complaint. 20 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 21 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 22 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 23 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 24 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 25 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 26 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 27 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 1 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 2 complaint be complete in itself without reference to any prior pleading. This is because, as a 3 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 4 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 5 longer serves any function in the case. Therefore, in an amended complaint, as in an original 6 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 7 V. Plain Language Summary for Pro Se Party 8 The following information is meant to explain this order in plain English and is not 9 intended as legal advice. 10 The court has reviewed the allegations in your complaint and determined that they do not 11 state any claim against the defendants. Your complaint is being dismissed, but you are being 12 given the chance to fix the problems identified in this screening order. 13 Although you are not required to do so, you may file an amended complaint, which must 14 be filed within 30 days from the date of this order. If you choose to file an amended complaint, 15 pay particular attention to the legal standards identified in this order which may apply to your 16 claims. 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 20 shall be collected and paid in accordance with this court’s order to the Sheriff of San Joaquin 21 County filed concurrently herewith. 22 3. Plaintiff’s complaint is dismissed. 23 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 24 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 25 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 26 ///// 27 ///// 28 ///// 1 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 2 || amended complaint in accordance with this order will result in a recommendation that this action 3 || be dismissed. 4 || Dated: November 22, 2022 Card Kt | / py la 4 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 12/shan1065.14.docx 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28