(PC) Bland v. Cox ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, No. 2:20-CV-0715-DMC-P 12 Plaintiff, 13 v. ORDER 14 DEREK COX, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint, ECF No. 19 15. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff names the following defendants: (1) Derek Cox, a correctional officer at 10 High Desert State Prison (“HDSP”); (2) C. Reynolds, a sergeant at HDSP; (3) F. Rodriquez, a 11 correctional officer at HDSP; (4) H. Van Radar, a correctional officer at HDSP; (5) Anaya, a 12 correctional officer at HDSP; (6) Patricha Rose, a psychiatric technician (“PT”) at HDSP; (7) 13 Parker, a PT at HDSP; and (8) D. Neland, a PT at HDSP. ECF No. 15, pgs. 1-2. Plaintiff alleges 14 three claims against the above Defendants. 15 First, Plaintiff alleges a violation of the Eight Amendment where “Defendants 16 Derek Cox, F. Rodriguez, H. Van Radar, and Anaya battered Plaintiff (Pltf) while he suffered a 17 seizure.” Id. at 3. Plaintiff suffered a “busted lip, broken tooth, regression of agoraphobia, 18 regression of P.T.S.D., etc.” Id. 19 Second, Plaintiff alleges a violation of the Eighth Amendment where “Defendants 20 C. Reynolds, Patricha Rose, Parker, and D. Neland all stood by and watched Defendants Derek 21 Cox, F. Rodriguez, H. Van Radar, and Anaya batter Pltf. and did nothing to intervene nor 22 otherwise as their co-workers battered Pltf.” Id. at 4. Plaintiff suffered a “busted lip, broken 23 tooth, regression in mental health, nightmares, fear of safety, etc.” Id. 24 Third, Plaintiff alleges a Fourteenth Amendment violation where: 25 Pltf. was issued a Rules Violation Report for allegedly biting Defendant Derek Cox’s (R) index finger while having a seizure; Pltf. was never 26 issued/or given said RVR by any officer/Defendant(s), nor otherwise, Pltf. was not noticed of said RVR, and was not given the opportunity to attend 27 said RVR hearing, and only found out about said RVR and the results until after the fact when Pltf. was at a re-classification committee and was told 28 that he was found guilty of said RVR and that he was going to be given a 1 SHU term and possibly criminally prosecuted. 2 Id. at 5. 3 “Pltf. was/is being criminally prosecuted in Lassen County Superior Court, case 4 No.: CHO38324.” Id. This is an apparent due process claim related to the RVR. 5 6 II. DISCUSSION 7 All of Plaintiff’s Eighth Amendment claims are cognizable as to each named 8 defendant. However, Plaintiff’s Fourteenth Amendment claim is not cognizable. Plaintiff has 9 failed to adequately link a named defendant with the Fourteenth Amendment due process 10 violation. 11 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 12 connection or link between the actions of the named defendants and the alleged deprivations. See 13 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 14 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 15 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 16 an act which he is legally required to do that causes the deprivation of which complaint is made.” 17 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 18 concerning the involvement of official personnel in civil rights violations are not sufficient. See 19 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 20 specific facts as to each individual defendant’s causal role in the alleged constitutional 21 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 22 Here, Plaintiff fails to allege a violation against any particular defendant for the 23 Fourteenth Amendment claim, apparently arising under the Due Process Clause. Plaintiff’s only 24 mention of a particular defendant occurs when he states that he was issued a Rules Violation 25 Report (“RVR”) for allegedly biting Defendant Cox’s finger. Plaintiff also mentions the 26 Defendants in general where he states that he “was never issued/or given said RVR by any 27 officer/Defendant(s).” Plaintiff’s Fourteenth Amendment claim is deficient as he does not allege 28 that anyone is liable for that claim. Should Plaintiff choose to amend, he should include in his 1 | third amended complaint the name of the person(s) he seeks to hold liable for this claim and facts 2 | that demonstrate that said person(s) violated his rights. 3 4 I. CONCLUSION 5 Because it is possible that the deficiencies identified in this order may be cured by 6 | amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 7 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 8 || amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 10 | prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 11 | amended complaint must be complete in itself without reference to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 | conditions complained of have resulted in a deprivation of Plaintiffs constitutional rights. See 14 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 || each named defendant is involved, and must set forth some affirmative link or connection 16 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Because the complaint appears to otherwise state cognizable claims, if no amended 19 | complaint is filed within the time allowed therefor, the Court will issue findings and 20 || recommendations that the claims identified herein as defective be dismissed, as well as such 21 | further orders as are necessary for service of process as to the cognizable claims. 22 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a third amended 23 | complaint within 30 days of the date of service of this order. 24 25 | Dated: October 27, 2021 Sx