(PC) Venable v. Perry ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE L. VENABLE, No. 2:21-cv-0814 AC P 12 Plaintiff, 13 v. ORDER 14 SUSAN PERRY, 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, 5. 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 Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).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, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint alleges that defendants Perry and Harwood violated plaintiff’s Eighth 13 Amendment rights by subjecting him to unconstitutional living conditions. ECF No. 1 at 3. 14 Specifically, plaintiff alleges that on November 13, 2019, he was transferred to a new dorm. Id. 15 The transfer was approved by defendant Harwood. Id. The dorm plaintiff was transferred to had 16 “broken windows, writing on the walls, inadequate lighting, broken shower, ceiling looked it was 17 about to cave in, paint peeling of[f] the walls & broken lockers.” Id. When plaintiff was placing 18 his items into his locker, he cut his right hand and thumb on a broken part of the locker and was 19 not seen by medical until three days later, at which point he received a tetanus shot. Id. at 4. 20 Plaintiff requested to be moved to another dorm, and while he was waiting, maintenance came 21 and worked on the locker. Id. 22 IV. Failure to State a Claim 23 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 24 connection between a defendant’s actions and the claimed deprivation, Rizzo v. Goode, 423 U.S. 25 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980), and plaintiff has not 26 alleged any facts showing the necessary personal involvement by any individual defendant. 27 Although plaintiff alleges that Harwood approved his transfer, there are no facts showing that he 28 was aware of the condition of the dorm or of any specific danger to plaintiff. See Farmer v. 1 Brennan, 511 U.S. 825, 834 (1994) (Eighth Amendment violated where prison official is 2 deliberately indifferent to serious risk of harm). Furthermore, the condition of the dorm, as 3 described by plaintiff, is not sufficient to constitute an Eighth Amendment violation. See Wilson 4 v. Seiter, 501 U.S. 294, 298 (1991) (“only those deprivations denying the minimal civilized 5 measure of life’s necessities, are sufficiently grave to form the basis of an Eighth Amendment 6 violation” (internal quotation marks and citation omitted)). 7 V. Leave to Amend 8 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 9 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 10 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 11 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 12 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 13 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 14 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 15 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 16 268 (9th Cir. 1982) (citations omitted). 17 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 18 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 19 complete in itself without reference to any prior pleading. This is because, as a general rule, an 20 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 21 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 22 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 23 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 24 complaint, the original complaint no longer serves any function in the case. Therefore, in an 25 amended complaint, as in an original complaint, each claim and the involvement of each 26 defendant must be sufficiently alleged. 27 //// 28 //// 1 VI. Plain Language Summary of this Order for a Pro Se Litigant 2 Your request to proceed in forma pauperis is granted and you are not required to pay the 3 entire filing fee immediately. 4 You are being given leave to amend because the facts you have alleged in the complaint 5 are not enough to state a claim for relief. You need to explain what each defendant did that you 6 believe violated your constitutional rights. To state a claim for failure to protect you must 7 provide facts showing that the defendants knew about and ignored a risk to your health or safety. 8 To state a claim based on your conditions of confinement, you must allege facts showing that 9 defendants were aware of the conditions of your dorm and that those conditions were sufficiently 10 serious. 11 If you choose to amend your complaint, the first amended complaint must include all of 12 the claims you want to make because the court will not look at the claims or information in the 13 original complaint. Any claims and information not in the first amended complaint will not 14 be considered. 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis, ECF No. 2, is GRANTED. 17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 18 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 19 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 20 Director of the California Department of Corrections and Rehabilitation filed concurrently 21 herewith. 22 3. Plaintiff’s complaint fails to state a claim upon which relief may be granted, see 28 23 U.S.C. § 1915A, and will not be served. 24 4. Within thirty days from the date of service of this order, plaintiff may file an amended 25 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 26 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 27 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 28 original and two copies of the amended complaint. Failure to file an amended complaint in 1 || accordance with this order will result in a recommendation that this action be dismissed. 2 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 3 | form used in this district. 4 | DATED: June 21, 2021 A / ~ 5 ALLISON CLAIRE. 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28