(PC) Cross v. Brazil ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 QUINTIN R. CROSS, No. 2:21-cv-00766-CKD P 12 Plaintiff, 13 v. ORDER 14 BRAZIL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 18 1983 and has paid the appropriate filing fee. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 On August 3, 2021, the court screened plaintiff’s complaint and gave him the option of 21 proceeding on the Eighth Amendment excessive force claim against defendant Brazil and the 22 First Amendment retaliation claims against defendants Brazil, Tsushoko, and Clays. In the 23 alternative, plaintiff could file an amended complaint to fix the deficiencies identified in the 24 screening order with respect to the remaining defendants and claims. ECF No. 4. Plaintiff 25 elected to file a first amended complaint which is now before the court for screening. ECF No. 8. 26 As plaintiff was previously advised, the court is required to screen complaints brought by 27 prisoners seeking relief against a governmental entity or officer or employee of a governmental 28 entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the 1 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 2 which relief may be granted, or that seek monetary relief from a defendant who is immune from 3 such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 I. Allegations in the First Amended Complaint 5 Plaintiff is a disabled and mobility impaired inmate confined at Mule Creek State Prison. 6 A group of correctional counselors and officers were gathered outside the A Facility’s Program 7 Office where plaintiff was waiting to speak with his counselor on July 16, 2020. Rather than be 8 permitted to speak to his counselor, defendant Feryance, plaintiff was escorted back to his cell 9 after several defendants called him names and cursed at him. While escorting him, defendant 10 Brazil told plaintiff to keep moving despite his disability and mobility impairment. After plaintiff 11 stopped to rest, defendant Brazil ordered plaintiff to stand up in order to get cuffed. Rather than 12 use a waist chain for his disability, defendant Brazil roughly “wrench[ed]” plaintiff’s arm behind 13 his back in an effort to cause him pain. Defendant Brazil then called for a wheelchair to transport 14 plaintiff back to his cell. Although defendant Tsushoko was also part of the escort team, it is not 15 clear from the allegations in the amended complaint, whether defendant Brazil or Tsushoko 16 shoved plaintiff into the wall once he arrived at his cell. 17 In his second claim for relief, plaintiff contends that defendant Clays, Brazil, and 18 Tsushoko prevented his transfer to Housing Unit #1 in order to retaliate against him for the 19 grievance that he filed alleging the use of excessive force against him on July 16, 2021. By 20 preventing his transfer, these defendants also violated his right to a safe housing assignment for 21 his mobility impairment and violated the Americans with Disabilities Act (ADA). 22 Although not a separate claim for relief, plaintiff generally alleges that when they were 23 gathered together, defendants “began to plot against [p]laintiff due to his history of filing 24 complaints and grievances against them.” ECF No. 8 at 6. Plaintiff contends that this plot 25 amounted to a civil conspiracy to deprive him of his First and Eighth Amendment rights. 26 II. Legal Standards 27 The following legal standards are being provided to plaintiff based on his pro se status as 28 well as the nature of the allegations in his amended complaint. 1 A. Supervisory Liability 2 Government officials may not be held liable for the unconstitutional conduct of their 3 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 4 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 5 each Government official, his or her title notwithstanding is only liable for his or her own 6 misconduct.”). When the named defendant holds a supervisory position, the causal link between 7 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 8 plaintiff must allege some facts indicating that the defendant either personally participated in or 9 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 10 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 11 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 12 B. Civil Conspiracy 13 To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts 14 showing an agreement or meeting of minds between the defendants to violate his constitutional 15 rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). Plaintiff must also 16 show how an actual deprivation of his constitutional rights resulted from the alleged conspiracy. 17 Id. “‘To be liable, each participant in the conspiracy need not know the exact details of the plan, 18 but each participant must at least share the common objective of the conspiracy.’” Franklin v. 19 Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steel Workers of Am. V. Phelps Dodge 20 Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) ). 21 The federal system is one of notice pleading, however, and the court may not apply a 22 heightened pleading standard to plaintiff's allegations of conspiracy. Empress LLC v. City and 23 County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa 24 Clara, 307 F.3d 1119, 1126 (2002). Although accepted as true, the “[f]actual allegations must be 25 [sufficient] to raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 26 550 U.S. 544, 555 (2007). A plaintiff must set forth “the grounds of his entitlement to relief[,]” 27 which “requires more than labels and conclusions, and a formulaic recitation of the elements of a 28 cause of action....” Id. 1 III. Analysis 2 After conducting the required screening, the court finds that plaintiff may proceed on the 3 Eighth Amendment excessive force claim against defendant Brazil and the First Amendment 4 retaliation and ADA claims against defendants Brazil, Tsushoko, and Clays. However, plaintiff 5 has failed to state a claim against defendants Aralado, Fonsworth, Feryance, and Johnson based 6 solely on their lack of control of their subordinates. The allegations in the first amended 7 complaint fail to state a claim against these defendants based on their supervisory capacity. See 8 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Nor does plaintiff sufficiently allege a conspiracy 9 claim against any of the named defendants. While defendants may have been gathered together 10 on the date alleged, plaintiff’s assertion that they were plotting to violate his constitutional rights 11 is entirely speculative. Plaintiff may elect to file a second amended complaint to attempt to cure 12 the deficiencies with respect to these defendants and claims if he believes he has a good faith 13 basis upon which to do so. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en 14 banc) (district courts must afford pro se litigants an opportunity to amend to correct any 15 deficiency in their complaints). In the alternative, plaintiff may choose to proceed immediately 16 on the First, Eighth, and ADA claims against defendants Brazil, Tsushoko, and Clays found 17 cognizable in this screening order. If plaintiff elects to proceed on the cognizable claims against 18 defendants Brazil, Tsushoko, and Clays, the court will construe this as a request to voluntarily 19 dismiss the additional claims and defendants pursuant to Rule 41(a)(1)(i) of the Federal Rules of 20 Civil Procedure. 21 IV. Plain Language Summary for Pro Se Party 22 The following information is meant to explain this order in plain English and is not 23 intended as legal advice. 24 Some of the allegations in the amended complaint state claims for relief against the 25 defendants, and some do not. You must decide if you want to (1) proceed immediately on the 26 Eighth Amendment excessive force claim against defendant Brazil and the First Amendment and 27 ADA claims against defendants Brazil, Tsushoko, and Clays; or, (2) amend the complaint to fix 28 the problems identified in this order with respect to the remaining claims and defendants. Once 1 | you decide, you must complete the attached Notice of Election form by checking only one box 2 || and returning it to the court. 3 Once the court receives the Notice of Election, it will issue an order telling you what you 4 | need to do next. If you do not return this Notice, the court will order service of the complaint only 5 || on the claims found cognizable in this screening order and will recommend dismissing remaining 6 || claims. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff has the option to proceed immediately on the Eighth Amendment excessive 9 || force claim against defendant Brazil as well as the First Amendment retaliation and ADA claims 10 || against defendants Brazil, Tsushoko, and Clays. In the alternative, plaintiff may choose to amend 11 || the complaint one more time if he believes in good faith that it is possible to fix the deficiencies 12 | identified in this order with respect to the remaining claims and defendants. 13 2. Within 21 days from the date of this order, plaintiff shall complete and return the 14 || attached Notice of Election form notifying the court whether he wants to proceed on the screened 15 || amended complaint or whether he wants time to file a second amended complaint. 16 3. If plaintiff fails to return the attached Notice of Election within the time provided, the 17 || court will construe this failure as consent to dismiss the deficient claims and proceed only on the 18 || cognizable claims identified above. 19 | Dated: January 25, 2022 / □□□ / 4 ly a 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 || 12/c10s076.option FAC 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 QUINTIN R. CROSS, No. 2:21-cv-00766-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 BRAZIL, et al., 15 Defendants. 16 17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the Eighth Amendment excessive force claim 19 against defendant Brazil as well as the First Amendment retaliation and ADA claims against 20 defendants Brazil, Tsushoko, and Clays. Plaintiff voluntarily dismisses the remaining defendants; 21 or 22 _____ Plaintiff wants time to file a second amended complaint. 23 24 DATED: 25 26 27 ____________________ Plaintiff 28