(PC) Gosztyla v. French ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GOSZTYLA, No. 2:21-cv-1403-EFB P 12 Plaintiff, 13 v. ORDER 14 FRENCH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint to (ECF No. 1), he has filed an application to 19 proceed in forma pauperis (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 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Plaintiff alleges that Officers French, Pfeifer, and Burnette applied or condoned the use of 26 excessive force when they arrested plaintiff on March 3, 2018. ECF No. 1 at 5. Plaintiff will be 27 permitted to proceed with his excessive force claims against these three defendants. 28 ///// 1 Plaintiff further alleges that Sheriff Scott Jones and Ashley Moore denied him due process 2 and retaliated against him by refusing to provide plaintiff “with reports and all other legal 3 documents he is entitled to under law in order to prosecute this case and prove his claims against 4 the defendants.” Id. at 6. A wrongful denial of a public records request, however, does not 5 violate plaintiff’s constitutional rights. See Houchins v. KQED, Inc., 438 U.S. 1 (1978) (“Neither 6 the First Amendment nor the Fourteenth Amendment mandates a right of access to government 7 information or sources of information within the government’s control.”). The exclusive remedy 8 for a denial of a proper California Public Records Act request “is to file a writ of mandamus in 9 state court and money damages are not an available remedy.” Brooks v. Vallejo City Unified Sch. 10 Dist., No. 2:12-cv-1466-GEB-EFB, 2013 U.S. Dist. LEXIS 33455 at *12 (E.D. Cal. Mar. 11, 11 2013) (citing Cal. Gov't Code §§ 6258, 6259(d)). As for a First Amendment retaliation claim, 12 plaintiff fails to show that either defendant was aware of plaintiff’s protected conduct or that their 13 denial of his records request was because of his protected conduct. Generally speaking, a 14 retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, “after 15 this, therefore because of this.” See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 16 2000). Plaintiff may choose to clarify this claim in an amended complaint. 17 Last, plaintiff claims that “[a]fter being driven from Napa Valley to the Sacramento 18 Sheriff’s Department, [he] was denied medical care” in violation of the Eighth Amendment. ECF 19 No. 1 at 7. Defendant Lamb purportedly told plaintiff, who was bleeding, that he would receive 20 medical care after they “spoke about his crime.” Id. Plaintiff claims he did not receive medical 21 care for 48 hours. Id. Lamb’s alleged failure to immediately summon medical care, however, 22 does not constitute deliberate indifference in violation of the Eighth Amendment unless plaintiff 23 can show that Lamb’s conduct led to further injury. See Hallett v. Morgan, 296 F.3d 732, 746 24 (9th Cir. 2002). Plaintiff may attempt to cure this defect in any amended complaint. Further, 25 should plaintiff choose to amend, he should also specify what serious medical needs he presented 26 to Lamb and who was responsible for the 48-hour delay in treatment. See Wilhelm v. Rotman, 27 680 F.3d 1113, 1122 (9th Cir. 2012). 28 ///// 1 For these reasons, plaintiff may either proceed only on the potentially cognizable 2 excessive force claims against defendants French, Pfeifer, and Burnette or he may amend his 3 complaint to attempt to cure the complaint’s deficiencies. Plaintiff is not obligated to amend his 4 complaint. 5 Leave to Amend 6 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. 7 Any amended complaint must identify as a defendant only persons who personally participated in 8 a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 9 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if 10 he does an act, participates in another’s act or omits to perform an act he is legally required to do 11 that causes the alleged deprivation). Plaintiff is not obligated to file an amended complaint. 12 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 13 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 22 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 23 See E.D. Cal. L.R. 110. 24 Conclusion 25 Accordingly, it is ORDERED that: 26 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted. 27 ///// 28 ///// 1 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 2 in accordance with the notice to the California Department of Corrections and 3 Rehabilitation filed concurrently herewith. 4 3. Plaintiff's complaint alleges, for screening purposes, potentially cognizable 5 excessive force claims against defendants French, Pfeifer, and Burnette. 6 4. All other claims, including those against defendants Jones, Moore, and Lamb, are 7 dismissed with leave to amend within 30 days from the date of service of this 8 order. Plaintiff is not obligated to amend his complaint. 9 5. Within thirty days plaintiff shall return the notice below advising the court whether 10 he elects to proceed with the cognizable claim or file an amended complaint. If 11 the former option is selected and returned, the court will enter an order directing 12 service at that time; 13 6. Failure to comply with any part of this this order may result in dismissal of this 14 action. 15 || Dated: November 8, 2021. $ Hor yj / A g , 16 EDMUND F. BRENNAN 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 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 RICHARD GOSZTYLA, No. 2:21-cv-1403-EFB P 11 Plaintiff, 12 v. NOTICE 13 FRENCH, et al., 14 Defendants. 15 16 In accordance with the court’s Screening Order, plaintiff hereby elects to: 17 18 (1) ______ proceed only with the excessive force claims against defendants French, 19 Pfeifer, and Burnette ; 20 21 OR 22 23 (2) ______ delay serving any defendant and file an amended complaint. 24 25 _________________________________ 26 Plaintiff 27 Dated: 28