(PC) Bland v. Messinger ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 2:20-cv-0051 KJM DB P 12 Plaintiff, 13 v. ORDER 14 JON A. MESSINGER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendants subjected him to verbal harassment and used 19 excessive force against him. Presently before the court is plaintiff’s amended complaint for 20 screening. (ECF No. 14.) For the reasons set forth below, the court will grant plaintiff the option 21 to proceed with the complaint as screened or file an amended complaint. 22 SCREENING 23 I. Legal Standards 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 27 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 28 //// 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim a complaint must 14 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 15 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 16 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 17 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 18 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 19 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 The Civil Rights Act under which this action was filed provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 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, 23 or other proper proceeding for redress. 24 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 25 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 26 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 27 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 28 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 1 omits to perform an act which he is legally required to do that causes the deprivation of which 2 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 4 their employees under a theory of respondeat superior and, therefore, when a named defendant 5 holds a supervisorial position, the causal link between him and the claimed constitutional 6 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 7 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 8 concerning the involvement of official personnel in civil rights violations are not sufficient. See 9 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 10 II. Allegations in the Amended Complaint 11 Plaintiff alleges that the events giving rise to the claim occurred while he was incarcerated 12 at Hight Desert State Prison (HDSP). (ECF No. 14 at 1.) He identified the following defendants: 13 (1) correctional officer Jon Mossinger; (2) correctional officers Frank Adujo; (3) correctional 14 officers Gill; (4) correctional officer J. Goforth; (5) correctional officer Savage; and (6) 15 correctional officer J. Lewis. (Id. at 2.) 16 Plaintiff alleges that on January 20, 2018, while he was in a Mental Health Crisis Bed, 17 officer Mossinger began to harass him, “threatening that he’s going to get [plaintiff] because 18 [plaintiff] like[s] to molest little boys.” (Id. at 3.) Plaintiff states that on January 20, 2018 he 19 attempted to assert his common law copyrights against the California Department of Corrections 20 and Rehabilitation (CDCR) and HDSP without his consent. (Id. at 4.) 21 Plaintiff further alleges that on January 21, 2018, correctional officer Mossinger kicked 22 his cell door and yelled for him to wake up to take his medication. (Id. at 5.) Plaintiff told 23 Mossinger he did not need the medications because it was only Tylenol. Mossinger snuck into 24 the cell and pointed to a letter plaintiff was trying to write. When plaintiff realized Mossinger 25 was in his cell he began to panic and blacked out. When plaintiff woke up he had been pulled out 26 of bed and dragged to the door where officers Gill and Savage were on top of him strangling him 27 with their radio cords. He further alleges that officers Mossinger and Goforth were kicking him 28 //// 1 in the ribs, officer Lewis was hitting him on the side of his heat with a metal baton, and officer 2 Andujo was standing on his ankles. 3 III. Does Plaintiff State a Claim Under § 1983? 4 A. Verbal Harassment 5 Plaintiff claims officer Mossinger began to harass plaintiff by threatening he was going to 6 “get” plaintiff because plaintiff “like[s] to molest little boys.” (ECF No. 14 at 3.) 7 The treatment a prisoner receives in prison and the conditions under which the prisoner is 8 confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual 9 punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 10 825, 832 (1994). A prison official violates the Eighth Amendment only when two requirements 11 are met” (1) objectively, the official’s act or omission must be so serious such that it results in the 12 denial of the minimal civilized measure of life’s necessities; and (2) subjectively, the prison 13 official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See 14 Farmer, 511 U.S. at 834. 15 Allegations of verbal harassment typically do not state a claim under the Eighth 16 Amendment unless it is alleged that the harassment was “calculated to . . . cause [the prisoner] 17 psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also 18 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1998), amended by 135 F.3d 1318 (9th Cir. 1998). 19 Verbal harassment intended to humiliate or endanger the inmate may violate the Constitution. 20 See Keenan, 83 F.3d at 1092. Verbal insults are not sufficient to state a claim. See Oltarzewski, 21 830 F.2d at 139 (mere verbal abuse, including the use of racial epithets, is not sufficient to state a 22 constitutional deprivation under section 1983); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) 23 (threats do not rise to the level of a constitutional violation). 24 Plaintiff’s allegations that Mossinger made a verbal threat is not sufficient to show that his 25 constitutional rights were violated. 26 B. Copyright Infringement 27 Plaintiff alleges that on January 20, 2018, he attempted to assert his “common law 28 copyrights against CDCR/HDSP from using [his] copyrighted property” without his consent. 1 (ECF No. 14 at 4.) To state a claim for copyright infringement, the plaintiff must allege 1) that he 2 or she owns a valid copyright in a work, and 2) the defendant copied original elements of the 3 copyrighted work. Feist Publications, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 361 4 (1991)); Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1076 (9th Cir.2006). 5 Here, plaintiff has not alleged that he owns a valid copyright in a work. Therefore, he has 6 failed to properly allege a claim for copyright infringement. 7 C. Excessive Force 8 The unnecessary and wanton infliction of pain violates the Cruel and Unusual 9 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). For 10 claims arising out of the use of excessive physical force, the issue is “‘whether force was applied 11 in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 12 harm.’” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curium) (quoting Hudson, 503 U.S. at 7). 13 The objective component of an Eighth Amendment claim is contextual and responsive to 14 contemporary standards of decency, Hudson, 503 U.S. at 8, and although de minimis uses of 15 force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 16 violates contemporary standards of decency, regardless of whether or not significant injury is 17 evident, Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10). 18 The complaint alleges that plaintiff passed out and awoke to officers Mossinger, Gill, 19 Savage, Goforth, Lewis, and Andujo kicking, strangling, and hitting him. Such allegations are 20 sufficient to state an excessive force claim against these defendants. 21 AMENDING THE COMPLAINT 22 As set forth above, the amended complaint states an excessive force claim against 23 defendants Mossinger, Gill, Savage, Goforth, Lewis, and Andujo, but does not state any other 24 claims. Accordingly, plaintiff will be given the opportunity to proceed with the complaint as 25 screened or to amend the complaint. If plaintiff chooses to file an amended complaint, he must 26 demonstrate how the conditions about which he complains resulted in a deprivation of his 27 constitutional rights. Rizzo, 423 U.S. at 370-71. Also, the complaint must allege in specific 28 terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some 2 affirmative link or connection between a defendant’s action and the claimed deprivation. Id.; 3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory 4 allegations of official participation in civil rights violations are not sufficient.” Ivey, 673 F.2d at 5 268. 6 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 7 and the action that defendant took that violated his constitutional rights. The court is not required 8 to review exhibits to determine what plaintiff’s charging allegations are as to each named 9 defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The 10 charging allegations must be set forth in the amended complaint, so defendants have fair notice of 11 the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in 12 support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See 13 Fed. R. Civ. P. 8(a). 14 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 15 R. Civ. P 10(b). The amended complaint must show the federal court has jurisdiction, the action 16 is brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 17 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 18 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 19 right. Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional 20 right if he does an act, participates in another’s act or omits to perform an act he is legally 21 required to do that causes the alleged deprivation). 22 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 23 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 24 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 25 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 26 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 27 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 28 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. wOAOe 2 UVM ING INI MMU POI ee AY OM 1 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 2 || amended complaint complete. An amended complaint must be complete in itself without 3 || reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 4 || prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 5 || each claim and the involvement of each defendant must be sufficiently alleged. 6 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 7 || has evidentiary support for his allegations, and for violation of this rule the court may impose 8 || sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 9 CONCLUSION 10 For the foregoing reasons, IT IS HEREBY ORDERED that: 11 1. The first amended complaint (ECF No. 14) states a potentially cognizable Eighth 12 Amendment claim against defendants Mossinger, Gill, Savage, Goforth, Lewis, and 13 Andujo as set forth in Section III above. The complaint does not state any additional 14 claims. Accordingly, plaintiff will have the option of proceeding with the complaint 15 as screened or filing an amended complaint. 16 2. Within sixty (60) days of the date of this order, plaintiff shall fill out and return the 17 attached form indicating how he would like to proceed in this action. 18 3. Plaintiff is warned that his failure to comply with this order will result in a 19 recommendation that this action be dismissed. 20 || Dated: September 23, 2020 21 22 23 24 95 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 26 27 28 DB | /Onders/Peisonen/Civil Righis/blan0051 som? 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 2:20-cv-0051 KJM DB P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 JON A. MESSINGER, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his claims Eighth Amendment excessive force 19 claim against defendants Mossinger, Gill, Savage, Goforth, Lewis, and Andujo. Plaintiff 20 understands that by going forward without amending the complaint he is voluntarily 21 dismissing all other claims. 22 23 _____ Plaintiff wants to amend the complaint. 24 25 DATED:_______________________ 26 27 Joshua Davis Bland Plaintiff pro se 28