(PC) Wesson v. Linde ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VONTELL WESSON, No. 2:19-cv-1880 DB P 12 Plaintiff, 13 v. ORDER 14 ERIC JONES, et al., 15 Defendants. 16 17 Plaintiff is a county inmate proceeding pro se with an action under 42 U.S.C. § 1983. 18 Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma 19 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 20 302 pursuant to 28 U.S.C. § 636(b)(1). 21 IN FORMA PAUPERIS 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 4 1915(b)(2). 5 SCREENING 6 I. Legal Standards 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 9 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 10 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 11 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 12 U.S.C. § 1915A(b)(1) & (2). 13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 18 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 19 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 20 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 21 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 22 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 However, in order to survive dismissal for failure to state a claim a complaint must 24 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 25 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 26 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 27 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 28 //// 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 5 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, 6 or other proper proceeding for redress. 7 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 10 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 11 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 12 an act which he is legally required to do that causes the deprivation of which complaint is made.” 13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 II. Analysis 15 A. Allegations of the Complaint 16 Plaintiff is an inmate at the Sacramento County Jail. He complains of conduct that 17 occurred when he was arrested on February 25, 2019 by Officer Burt A. Linde of the Stockton 18 Police Department. Plaintiff contends Linde placed handcuffs on him so tightly that he suffered a 19 broken wrist and permanent nerve damage. In his second claim, plaintiff contends defendant Eric 20 Jones, the “Commander and Chief” of the Stockton Police Department, is responsible for the 21 department’s policies and police training that resulted in his injuries. 22 B. Does Plaintiff State Cognizable Claims for Relief? 23 Initially, the court notes that it issued an order requiring plaintiff to show that he 24 exhausted his administrative remedies before filing suit or had an excuse for failing to do so. 25 (ECF No. 7.) Plaintiff responded that he has attempted to do so. (ECF No. 8.) Upon closer 26 examination of the complaint, plaintiff’s administrative remedies are not apparent to this court 27 because he is incarcerated in Sacramento but alleges wrongdoing by defendants with the Stockton 28 //// 1 Police Department. Accordingly, at this juncture, this court will not address the issue of 2 exhaustion. 3 The court finds plaintiff’s allegations against Linde are sufficient to state a claim for a 4 violation of plaintiff’s Eighth Amendment rights to be free of excessive force. However, 5 plaintiff’s allegations against defendant Jones do not state a claim for relief for the following 6 reasons. 7 Supervisory personnel are generally not liable under § 1983 for the actions of their 8 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 9 supervisorial position, the causal link between him and the claimed constitutional violation must 10 be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. 11 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the 12 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 13 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 14 To allege a defendant instituted a policy that harmed him, plaintiff must: (1) identify that 15 policy with specificity, (2) show that the defendant was directly responsible for it, (3) show that 16 the defendant knew the policy could cause plaintiff harm, and (4) show how the policy caused 17 him harm. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). To allege a defendant 18 failed to train, plaintiff must show: (1) that the defendant was responsible for that training, (2) 19 just what the defendant did or did not do, (3) that the defendant knew his actions could cause 20 plaintiff harm, and (4) that the actions did cause plaintiff harm. See Edgerly v. City & Cnty. of 21 S.F., 599 F.3d 946, 962 (9th Cir. 2010) (dismissing supervisory liability claim when no facts 22 “suggest [Sheriff] provided any training to Officers...., or that he was responsible for providing 23 formal training to any officers.”). None of plaintiff’s allegations are sufficient to show either that 24 defendant Jones instituted a policy that caused plaintiff harm or that Jones failed to train 25 defendant Linde. 26 III. Conclusion 27 This court finds plaintiff has stated a cognizable Eighth Amendment excessive force claim 28 against defendant Linde. This court further finds that plaintiff fails to state a potentially 1 cognizable claim against defendant Jones. Plaintiff will be given two choices. First, plaintiff 2 may choose to proceed on his current claim against defendant Linde. In that case, this court will 3 recommend defendant Jones be dismissed from this action. Second, plaintiff may choose to 4 amend his complaint to state claims against both defendants. Plaintiff is warned that if he 5 chooses to amend his complaint, he must include ALL claims he wishes to proceed on in this 6 action. 7 If plaintiff chooses to file an amended complaint, he must address the problems with his 8 complaint that are explained above. Plaintiff is advised that in an amended complaint he must 9 clearly identify each defendant and the action that defendant took that violated his constitutional 10 rights. The court is not required to review exhibits to determine what plaintiff’s charging 11 allegations are as to each named defendant. If plaintiff wishes to add a claim, he must include it 12 in the body of the complaint. The charging allegations must be set forth in the amended 13 complaint, so defendants have fair notice of the claims plaintiff is presenting. That said, plaintiff 14 need not provide every detailed fact in support of his claims. Rather, plaintiff should provide a 15 short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 16 Any amended complaint must show the federal court has jurisdiction, the action is brought in 17 the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a 18 request for particular relief. Plaintiff must identify as a defendant only persons who personally 19 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 20 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 21 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 22 legally required to do that causes the alleged deprivation). “Vague and conclusory allegations of 23 official participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 24 266, 268 (9th Cir. 1982) (citations omitted). 25 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. 26 Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. 27 Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 28 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 1 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 2 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 3 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 4 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 5 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 6 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 7 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 8 An amended complaint must be complete in itself without reference to any prior pleading. 9 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 10 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 11 evidentiary support for his allegations, and for violation of this rule the court may impose 12 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 13 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as 14 follows: 15 1. Plaintiff’s motion to proceed in forma pauperis (ECF Nos. 2, 6) is granted. 16 2. Plaintiff’s claim against defendant Jones is dismissed with leave to amend. 17 3. Plaintiff may choose to proceed on his cognizable claim against defendant Linde, as set 18 out above, or he may choose to amend his complaint. 19 a. If plaintiff chooses to proceed on his current Eighth Amendment excessive force claim 20 against defendant Linde, he shall so notify the court within thirty days. The court will then order 21 service of the complaint on defendant Linde and will recommend dismissal of plaintiff’s 22 remaining claim and of defendant Jones. 23 b. If plaintiff chooses to amend his complaint, within thirty days from the date of service 24 of this order, he may filed an amended complaint that complies with the requirements of the Civil 25 Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended 26 complaint must bear the docket number assigned this case and must be labeled “First Amended 27 Complaint.” Plaintiff’s failure to file an amended complaint within the time provided, or 28 otherwise respond to this order, will result in the case proceeding on plaintiff’s Eighth 1 | Amendment claim against defendant Linde identified above. The court will then recommend 2 | dismissal of plaintiff's remaining claim against defendant Jones. 3 4. The Clerk of the Court is directed to randomly assign a district judge to this case and to 4 | send plaintiff a copy of the prisoner complaint form used in this district. 5 | Dated: December 11, 2019 g ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 | DLB:9 DB/prisoner-civil rights/wess1880.scrn Ita or proceed 18 19 20 21 22 23 24 25 26 27 28