(PC) Whitfield v. Smolich ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEWAZE LAXOTTER WHITFIELD, No. 2:21-cv-1218 DB P 12 Plaintiff, 13 v. ORDER 14 SMOLICH, 15 Defendant. 16 17 Plaintiff, a county inmate proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff’s complaint was filed on July 9, 2021. (ECF No. 1.) Plaintiff has not 19 paid the required filing fee of $350.00 plus the $52.00 administrative fee nor has he filed an 20 application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). Plaintiff will be 21 granted thirty (30) days to pay the filing fee in full or submit a properly completed application to 22 proceed in forma pauperis. 23 Plaintiff is cautioned that the in forma pauperis application form includes a section that 24 must be completed by a prison official, and the form must be accompanied by a certified copy of 25 plaintiff’s prison trust account statement for the six-month period immediately preceding the 26 filing of this action. 27 Additionally, the complaint is not signed or dated. (ECF No. 1 at 3.) The court cannot 28 consider unsigned filings, and the complaint must therefore be stricken from the record. Fed. R. 1 Civ. P. 11(a); E.D. Cal. R. 131. Plaintiff will be provided thirty (30) days to file a signed and 2 appropriately dated complaint. Failure to submit a signed amended complaint will result in a 3 recommendation that this action be dismissed. 4 Plaintiff should also ensure that an amended complaint complies with the pleading 5 requirements. Below, the court sets out the pleading standards and the legal standards which 6 appear to apply to plaintiff’s claims. Before filing an amended complaint, plaintiff should review 7 his complaint to ensure it complies with these standards. 8 I. Pleading Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 21 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 22 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 23 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 11 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 12 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 13 an act which he is legally required to do that causes the deprivation of which complaint is made.” 14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Therefore, to state a claim under § 1983, plaintiff must clearly identify each defendant and 16 describe just what that defendant did that violated his constitutional rights. Plaintiff is also 17 warned that the court is not required to review exhibits to determine what plaintiff’s charging 18 allegations are as to each named defendant. 19 Plaintiff should carefully review the legal standards set out below to determine whether a 20 defendant’s conduct amounts to a constitutional violation. 21 II. Legal Standards 22 A. Excessive Force 23 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 24 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. 25 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither 26 accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and 27 wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by 28 the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 1 What is needed to show unnecessary and wanton infliction of pain “varies according to 2 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) 3 (citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment, 4 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious 5 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or 6 causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 7 For claims arising out of the use of excessive physical force, the issue is “‘whether force 8 was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically 9 to cause harm.’” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson, 503 10 U.S. at 7). The objective component of an Eighth Amendment claim is contextual and responsive 11 to contemporary standards of decency, Hudson, 503 U.S. at 8, and although de minimis uses of 12 force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 13 violates contemporary standards of decency, regardless of whether or not significant injury is 14 evident, Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10). 15 //// 16 //// 17 //// 18 //// 19 //// 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Within thirty days from the date of this order, petitioner shall file a signed and dated 3 complaint; 4 2. Plaintiff shall submit, within thirty days from the date of this order, either the $350.00 5 filing fee plus the $52.00 administrative fee or a properly completed application to 6 proceed in forma pauperis on the form provided with this order; 7 3. Plaintiff is cautioned that failure to comply with this order or seek an extension of time 8 to do so will result in dismissal of this action without prejudice; and 9 4. The Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma 10 Pauperis By a Prisoner for use in a civil rights action. 11 Dated: July 20, 2021 12 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 | pps 19 DB: 1/Orders/Prisoner/Civil_Rights/R/whit1218.3a 20 21 22 23 24 25 26 27 28