(PC) Parnell v. Wheeler ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.P. PARNELL, No. 2:21-cv-01182-CKD P 12 Plaintiff, 13 v. ORDER 14 WHEELER, 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 this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 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 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Legal Standards 27 A. Excessive Force 28 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 1 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 2 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 3 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 4 core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore 5 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 6 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 7 injury, the need for application of force, the relationship between that need and the amount of 8 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 9 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 10 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 11 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 12 cause harm always violates contemporary standards of decency in violation of the Eighth 13 Amendment. Whitley, 475 U.S. at 327. 14 B. Inmate Grievances 15 The existence of a prison grievance procedure establishes a procedural right only and 16 “does not confer any substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 17 (8th Cir. 1993) (citation omitted); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 18 (no liberty interest in processing of appeals because no entitlement to a specific grievance 19 procedure). This means that a prison official’s action in reviewing an inmate grievance cannot 20 serve as a basis for liability under Section 1983. Buckley, 997 F.2d at 495. “Only persons who 21 cause or participate in the violations are responsible. Ruling against a prisoner on an 22 administrative complaint does not cause or contribute to the violation. A guard who stands and 23 watches while another guard beats a prisoner violates the Constitution; a guard who rejects an 24 administrative complaint about a completed act of misconduct does not.” George v. Smith, 507 25 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted). 26 III. Analysis 27 Before the court could screen the complaint, plaintiff filed a motion to supplement his 28 pleading by adding a third claim for relief. ECF No. 6. However, Local Rule 220 requires “every 1 pleading to which an amendment or supplement is permitted… shall be retyped and filed so that it 2 is complete in itself without reference to the prior or superseded pleading. No pleading shall be 3 deemed amended or supplemented until this Rule has been complied with.” Because plaintiff’s 4 motion to supplement seeks to attach another page to the original complaint, the court will 5 construe this request as a motion to amend his complaint. So construed, the motion is granted. 6 Plaintiff’s complaint is dismissed and he is granted 30 days to comply with Local Rule 220 by 7 filing an amended complaint that is complete in itself without reference to any prior pleading. In 8 so doing, the court has provided plaintiff with the appropriate legal standards governing his 9 potential claims for relief. 10 If plaintiff chooses to file an amended complaint, plaintiff must demonstrate how the 11 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 12 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must 13 allege in specific terms how each named defendant is involved. There can be no liability under 14 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s 15 actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague 16 and conclusory allegations of official participation in civil rights violations are not sufficient. 17 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motions for leave to proceed in forma pauperis (ECF No. 2, 7) are granted. 20 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 21 shall be collected and paid in accordance with this court’s order to the Director of the California 22 Department of Corrections and Rehabilitation filed concurrently herewith. 23 3. Plaintiff’s motion to supplement his complaint (ECF No 6) is granted. 24 4. Plaintiff’s complaint is dismissed. 25 5. Plaintiff is granted thirty days from the date of service of this order to file an amended 26 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 27 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 28 number assigned this case and must be labeled “Amended Complaint.” Failure to file an 1 | amended complaint in accordance with this order will result in a recommendation that this action 2 || be dismissed. 3 | Dated: August 26, 2021 i / aie ll 4 CAROLYN K DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 | 12/parn1182.m2supplement.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28