(PC) Thompson v. Baughman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROMONTE J. THOMSON, No. 2:20-cv-0132 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 DAVID BAUGHMAN, et al., 15 Defendants. 16 17 Plaintiff is appearing pro se and in this civil rights action pursuant to 42 U.S.C. § 1983. 18 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302. 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 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) & 6 (2). Plaintiff’s amended complaint (ECF No. 1) is before the court for screening. 7 The court finds that this case may proceed against defendant Nicholson on a claim for 8 excessive force arising under the Eighth Amendment. With respect to the other defendants 9 identified in plaintiff’s complaint, the facts alleged fail to state actionable claims. Plaintiff has 10 two options: 1) he may proceed on the claim described above; or 2) make an attempt to cure the 11 deficiencies in his complaint with respect to the other defendants and claims in an amended 12 complaint. 13 If plaintiff decides to file an amended complaint, plaintiff should consider the following: 14 1. In order to avoid dismissal for failure to state a claim a complaint must contain more 15 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a 16 cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other 17 words, “[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 2. In order to state an actionable claim, plaintiff must demonstrate with specific 27 allegations how the conditions complained of have resulted in a deprivation of plaintiff’s 28 constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended 1 complaint, plaintiff must allege in specific terms how each named defendant is involved. There 2 can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 3 between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 4 (1976). Furthermore, vague and conclusory allegations of official participation in civil rights 5 violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 6 3. Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 7 violation of the prisoner’s Eighth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104-05 8 (1976). A prison official is liable for such a violation only when the official causes injury as a 9 result of at least deliberate indifference to a prisoner’s serious medical needs. Id. 10 4. Plaintiff asserts violations of California law, but plaintiff fails to plead compliance with 11 the California Tort Claims Act. Plaintiff is informed that before he may proceed on a claim 12 arising under California law in this court he must comply with the terms of the California Tort 13 Claims Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. 14 Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts 15 demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista 16 Unified School Dist., 42 Cal.4th 201, 209 (2007). 17 Finally, plaintiff is informed that if he elects to amend his complaint the court cannot refer 18 to a prior pleading in order to make the amended complaint complete. Local Rule 220 requires 19 that an amended complaint be complete in itself without reference to any prior pleading. This is 20 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 21 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 22 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 23 original complaint, each claim and the involvement of each defendant must be sufficiently 24 alleged. 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 5) is granted; 27 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 28 shall be collected and paid in accordance with this court’s order to the Director of the California 1 | Department of Corrections and Rehabilitation filed concurrently herewith. 2 3. Plaintiff is granted 21 days within which to complete and return the attached form 3 | notifying the court whether he wants to proceed against defendant Nicholson on a claim for 4 | excessive force arising under the Eighth Amendment or whether he wishes to file an amended 5 | complaint in an attempt to cure the deficiencies in his complaint. If plaintiff does not return the 6 | form, this action will proceed on the claim described above. 7 | Dated: March 26, 2020 es A dj Kt . Ld : { pm, 8 CAROLYN K. DELANEY 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 thom0132.0p 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 ROMONTE J. THOMPSON, No. 2:20-cv-0132 KJM CKD P 14 Plaintiff, 15 v. PLAINTIFF’S NOTICE OF 16 DAVID BAUGHMAN, et al., HOW TO PROCEED 17 Defendants. 18 19 Check one: 20 _____ Plaintiff wants to proceed immediately on a claim arising under the Eighth Amendment for 21 excessive force against defendant Nicholson. 22 _____ Plaintiff wants time to file an amended complaint. 23 DATED: 24 ________________________________ 25 Plaintiff 26 27 28