(PC) Howell v. Konrad ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2:20-cv-2155-EFB P 12 Plaintiff, 13 v. ORDER 14 A. KONRAD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983, has filed an application for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. ECF No. 2. 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 6 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 7 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 8 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 10 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 11 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 12 U.S. 662, 679 (2009). 13 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 14 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 15 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 16 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 17 678. 18 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 19 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 22 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 23 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 24 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 25 Screening Order 26 Plaintiff’s complaint names four defendants: A. Konrad, C. Darling, L. Andrichak, and D. 27 Caitlin. The allegations sufficiently allege that both Konrad and Darling retaliated against 28 plaintiff in violation of the First Amendment and were deliberately indifferent to plaintiff’s safety 1 in violation of the Eighth Amendment when they made various remarks to plaintiff, including 2 calling him a “rat” in the presence of other inmates. The allegations also adequately allege facts 3 indicating that defendant Caitlin retaliated against plaintiff by refusing to give plaintiff a form for 4 filing an appeal, allegedly stating “You already sued me, now you’re pissing off my boss and they 5 just ordered all of us to not give you nothing.” ECF No. 1 at 9. However, the complaint does not 6 demonstrate how defendant Andrichak was personally involved in any violation of plaintiff’s 7 rights. 8 Plaintiff may either proceed only with the claims identified herein or he may amend his 9 complaint to attempt to cure any deficiencies He may not, however, change the nature of this suit 10 by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff 11 is not obligated to amend his complaint. 12 Leave to Amend 13 Any amended complaint must identify as a defendant only persons who personally 14 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 15 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 16 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 17 legally required to do that causes the alleged deprivation). Plaintiff is not obligated to file an 18 amended complaint. 19 Any amended complaint must be written or typed so that it so that it is complete in itself 20 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 21 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 22 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 23 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 24 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 25 1967)). 26 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 27 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 28 See E.D. Cal. L.R. 110. 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff’ s request to proceed in forma pauperis (ECF No. 2) is GRANTED. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. Plaintiff’ s complaint alleges, for screening purposes, the following viable claims: 8 a. First Amendment retaliation claims against defendants Konrad, Darling, and 9 Caitlin; and 10 b. Eighth Amendment deliberate indifference to safety claims against defendants 11 Konrad and Darling. 12 4. All other claims (including all claims against defendant Andrichak) are dismissed 13 with leave to amend within 30 days from the date of service of this order. Plaintiff 14 is not obligated to amend his complaint. 15 5. Within thirty days plaintiff shall return the notice below advising the court whether 16 he elects to proceed with the cognizable claims against defendants Konrad, 17 Darling, and Caitlin, or file an amended complaint. If the former option is selected 18 and returned, the court will enter an order directing service at that time. 19 6. Failure to comply with any part of this this order may result in dismissal of this 20 action for the reasons stated herein. 21 | DATED: November 13, 2020. 23 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KAREEM J. HOWELL, No. 2:20-cv-2155-EFB P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 A. KONRAD, et al., 14 Defendants. 15 16 In accordance with the court’s Screening Order, plaintiff hereby elects to: 17 18 (1) ______ proceed only with (a) the First Amendment retaliation claims against 19 defendants Konrad, Darling, and Caitlin and (b) the Eighth Amendment deliberate indifference to safety claims against defendants Konrad and Darling. 20 OR 21 22 (2) ______ delay serving any defendant and files an amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28