(PC) Davis v. Durant ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWIGHT DELTON DAVIS, No. 2:21-cv-1043 AC P 12 Plaintiff, 13 v. ORDER 14 M. DURANT, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF Nos. 2, 6. Accordingly, the request to proceed in forma pauperis 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 this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 20 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 21 (1957)). “Failure to state a claim under § 1915A incorporates the familiar standard applied in the 22 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. 23 Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal 24 for failure to state a claim, a complaint must contain more than “a formulaic recitation of the 25 elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to 26 relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he 27 pleading must contain something more . . . than . . . a statement of facts that merely creates a 28 //// 1 suspicion [of] a legally cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles 2 Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint names correctional officers Durant, Haq, McHtgomery, and Sweeten as 14 defendants. ECF No. 1 at 2. Plaintiff alleges that on March 21, 2021, he was subjected to an 15 unauthorized cell extraction that failed to follow proper procedures and protocol. Id. at 3. During 16 the extraction, plaintiff was subjected to excessive force and “stomped, punched and kicked 17 several times repeatedly.” Id. As a result, he suffered a fractured neck and fractured ankle. Id. 18 IV. Failure to State a Claim 19 The complaint fails to identify the actions of any of the defendants. There can be no 20 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 21 defendant’s actions and the claimed deprivation, Rizzo v. Goode, 423 U.S. 362, 371, 376 (1976); 22 May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980), and plaintiff has not alleged any facts 23 showing the necessary personal involvement of any individual defendant. Even assuming 24 defendants were involved in the cell extraction, the court cannot find that plaintiff has stated a 25 claim for excessive force against any defendant without information regarding how each 26 defendant participated. 27 To state an Eighth Amendment excessive force claim against any defendant, the factual 28 allegations must show that the individual acted “maliciously and sadistically to cause harm” 1 rather than “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 2 503 U.S. 1, 6-7 (1992). Plaintiff will be given the opportunity to amend. 3 V. Leave to Amend 4 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 5 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 6 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 7 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 8 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 9 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 10 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 11 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 12 268 (9th Cir. 1982) (citations omitted). 13 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 14 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 15 complete in itself without reference to any prior pleading. This is because, as a general rule, an 16 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 17 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 18 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 19 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 20 complaint, the original complaint no longer serves any function in the case. Therefore, in an 21 amended complaint, as in an original complaint, each claim and the involvement of each 22 defendant must be sufficiently alleged. 23 VI. Plain Language Summary of this Order for a Pro Se Litigant 24 Your request to proceed in forma pauperis is granted and you are not required to pay the 25 entire filing fee immediately. 26 You are being given leave to amend because the facts you have alleged in the complaint 27 are not enough to state a claim for relief. You need to explain what each defendant did that you 28 believe violated your constitutional rights. To state a claim against any defendant for excessive 1 | force, you need to provide facts showing that the person used force in order to hurt you and not 2 || because there was a legitimate need to forcibly remove you from your cell. 3 If you choose to amend your complaint, the first amended complaint must include all of 4 || the claims you want to make because the court will not look at the claims or information in the 5 || original complaint. Any claims and information not in the first amended complaint will not 6 || be considered. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiffs request for leave to proceed in forma pauperis, ECF No. 2, is GRANTED. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 11 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 12 | Director of the California Department of Corrections and Rehabilitation filed concurrently 13 || herewith. 14 3. Plaintiff's complaint fails to state a claim upon which relief may be granted, see 15 | 28 U.S.C. § 1915A, and will not be served. 16 4. Within thirty days from the date of service of this order, plaintiff may file an amended 17 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 19 | number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 20 || original and two copies of the amended complaint. Failure to file an amended complaint in 21 || accordance with this order will result in a recommendation that this action be dismissed. 22 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 23 || form used in this district. 24 | DATED: June 17, 2021. 25 ~ 26 Hhthtin— Clare ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28