(PC) Hawkins v. Shearer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEON HAWKINS, No. 2:19-cv-02295-CKD-P 12 Plaintiff, 13 v. ORDER 14 A. SHEARER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1) 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 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 2 I. Screening Requirement 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 II. Allegations in the Complaint 28 At all times relevant to the allegations in the complaint, plaintiff was an inmate at 1 California State Prison in Sacramento (“CSP-Sac”). He alleges that on March 18, 2019, 2 defendant A. Shearer used excessive force against him after he placed plaintiff in a waist chain 3 and handcuffs. ECF No. 1 at 5. Defendants R. Sharp and C. Deitchman responded to plaintiff’s 4 cell and also used excessive force against him. ECF No. 1 at 6-9. Plaintiff received injuries to 5 his face, head, genitals, ankles, right knee, and wrists. ECF No. 1 at 5-6, 9. 6 Plaintiff also alleges that after he was injured defendant C. Brown failed to document his 7 injuries on a CDCR 7219 Medical Report of Injury or Unusual Occurrence form. ECF No. 1 at 8 10. He further alleges that defendant K. Chastain never instructed the medical staff to document 9 plaintiff’s injuries. Id. at 10. 10 By way of relief, plaintiff seeks a declaratory judgment as well as compensatory and 11 punitive damages. ECF No. 1 at 8. 12 III. Analysis 13 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 14 screening, finds that it states a potentially cognizable Eighth Amendment excessive force claim 15 against defendants Shearer, Sharp, and Deitchman. With respect to the other defendants 16 identified in plaintiff’s complaint, the facts alleged fail to state actionable claims. Plaintiff does 17 not connect defendants Brown, Chastain, or Miller to any of the excessive force claims nor any 18 other cognizable claim for relief. At this time, plaintiff may elect to proceed on the Eighth 19 Amendment excessive force claim against defendants Shearer, Sharp, and Deitchman; or, in the 20 alternative, he may elect to amend his complaint to attempt to cure some or all of the deficiencies 21 identified in this order with respect to the remaining defendants. See Lopez v. Smith, 203 F.3d 22 1122, 1126–27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an 23 opportunity to amend to correct any deficiency in their complaints). If plaintiff chooses to 24 proceed on the claim found cognizable in this screening order, the court will construe this as a 25 request to voluntarily dismiss the remaining defendants pursuant to Rule 41(a)(1)(i) of the Federal 26 Rules of Civil Procedure. 27 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 28 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 1 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 2 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 3 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 4 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 5 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 To the extent that plaintiff is attempting to state an Eighth Amendment deliberate 8 indifference claim to his serious medical needs, he is advised of the following legal standards. 9 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a violation 10 of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104- 11 05 (1976). An individual is liable for such a violation only when the individual is deliberately 12 indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 1091, 1096 (9th 13 Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 14 1131-32 (9th Cir. 2000). 15 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 16 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 17 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 18 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 19 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 20 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 21 existence of an injury that a reasonable doctor or patient would find important and worthy of 22 comment or treatment; the presence of a medical condition that significantly affects an 23 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 24 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 25 Second, the plaintiff must show the defendant’s response to the need was deliberately 26 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 27 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 28 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 1 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 2 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 3 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 4 showing of merely negligent medical care is not enough to establish a constitutional violation. 5 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 6 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 7 a dispute between a prisoner and prison officials over the necessity for or extent of medical 8 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 9 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 10 medical treatment, “without more, is insufficient to state a claim of deliberate medical 11 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 12 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 13 prisoner must show that the delay caused “significant harm and that Defendants should have 14 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 15 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This is because, as a 18 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 19 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 20 longer serves any function in the case. Therefore, in an amended complaint, as in an original 21 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 22 IV. Plain Language Summary for Pro Se Party 23 The following information is meant to explain this order in plain English and is not 24 intended as legal advice. 25 Some of the allegations in the complaint state claims for relief against the defendants, and 26 some do not. You may choose to file an amended complaint to try to fix these problems. You 27 must decide if you want to (1) proceed immediately on the Eighth Amendment excessive force 28 claim against defendants Shearer, Sharp, and Deitchman ; or, (2) try to amend the complaint to fix MASE 2 LDU VME LIP INE MMIC AO PI Te PY VV 1 | the deficiencies identified in this order. Once you decide, you must complete the attached Notice 2 | of Election form by checking only one of the appropriate boxes and return it to the court. Once 3 | the court receives the Notice of Election, it will issue an order telling you what you need to do 4 | next (e. file an amended complaint or wait for the defendants to be served with a copy of the 5 | complaint). If you do not return this Notice, the court will order service of the complaint only on 6 | the claim found cognizable in this screening order and will recommend dismissing the remaining 7 | claims with prejudice. 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motions for leave to proceed in forma pauperis (ECF Nos. 8, 10) are 10 granted. 11 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 12 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 13 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to 14 the California Department of Corrections and Rehabilitation filed concurrently herewith. 15 3. Within 21 days from the date of this order, plaintiff shall complete and return the 16 attached Notice of Election form notifying the court whether he wants to proceed on the 17 screened complaint or whether he wants time to file a first amended complaint. 18 4. If plaintiff fails to return the attached Notice of Election within the time provided, the 19 court will construe this failure as consent to dismiss the deficient claims with prejudice 20 and proceed only on the cognizable claims identified above. 21 | Dated: April 30, 2020 Ci dp. f | fe 2 CAROLYN K DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 12/hawk2295.14.option.docx 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEON HAWKINS, 12 Plaintiff, No. 2:19-cv-02295-CKD 13 v. 14 A. SHEARER et al., NOTICE OF ELECTION 15 Defendants. 16 17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the Eighth Amendment excessive force claim 19 against defendants Shearer, Sharp, and Deitchman. Plaintiff voluntarily dismisses the remaining 20 claims against the remaining defendants; or, 21 _____ Plaintiff wants time to file a first amended complaint. 22 23 24 DATED: 25 ________________________________ 26 Plaintiff 27 28