(PC) Carraway v. Peterson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MEEKO CARRAWAY, No. 2:17-cv-2220 AC P 12 Plaintiff, 13 v. ORDER 14 J. PETERSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF Nos. 2, 9. Accordingly, the request to proceed in forma pauperis 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 this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 //// 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 10 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 11 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 Plaintiff alleges that defendants Peterson, Barker, and Dutton violated his rights under the 14 Eighth Amendment. ECF No. 1 at 3. Specifically, he claims that he told defendant Peterson that 15 he was hearing a spirit that was telling him to kill his cellmate so that he could be alone with the 16 spirit, but Peterson ignored his claims. Id. As a result, the spirit forced plaintiff to kill his 17 cellmate. Id. Defendant Barker allegedly recommended that plaintiff be double celled without 18 talking to plaintiff first, and Dutton failed to “contact outside agencies even though she told 19 [plaintiff] she was trying to get [his] single cell status reinstated.” Id. Plaintiff alleges that he 20 should have been placed on suicide or homicide watch or single-celled, and as a result of 21 defendants’ failures he suffered from cuts, bruises, and emotional devastation and was subject to 22 murder charges. Id. at 3-4. 23 IV. Deliberate Indifference 24 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 25 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 26 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 27 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 28 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 1 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 2 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 3 Deliberate indifference is established only where the defendant subjectively “knows of 4 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 5 1057 (9th Cir. 2004) (citation and internal quotation marks omitted). Deliberate indifference can 6 be established “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or 7 possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citation 8 omitted). Civil recklessness (failure “to act in the face of an unjustifiably high risk of harm that is 9 either known or so obvious that it should be known”) is insufficient to establish an Eighth 10 Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 (1994) (citations 11 omitted). In general, deliberate indifference “may appear when prison officials deny, delay or 12 interfere with medical treatment, or it may be shown by the way in which prison physicians 13 provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citation 14 omitted). 15 A. Claims for Which a Response Will Be Required 16 Liberally construed, plaintiff’s allegations against defendant Peterson state a claim for 17 relief. Plaintiff alleges that Peterson was made aware that plaintiff’s mental health condition was 18 creating homicidal ideations and, instead of obtaining treatment for plaintiff, Peterson ignored his 19 mental health needs and “forced [him] to try to make it work.” ECF No. 1 at 3. As a result of 20 this lack of intervention, plaintiff’s mental health condition drove him to attack and kill his 21 cellmate and plaintiff suffered physical and psychological injury in the aftermath. 22 B. Failure to State a Claim 23 Plaintiff’s allegations against Barker and Dutton are insufficient to state claims for relief 24 because he has not shown that either defendant was aware of the risk of harm to plaintiff. There 25 is nothing to indicate that Barker knew failing to talk to plaintiff before making a housing 26 decision would pose a serious risk of harm to plaintiff, or that he was otherwise aware that 27 plaintiff was suffering from hallucinations telling him to kill his cellmate. Similarly, there are no 28 facts showing Dutton was aware that plaintiff was suffering from homicidal ideation. Although 1 plaintiff states that Dutton told him she was going to recommend he be granted single cell status, 2 it is unclear whether the recommendation was based on Dutton’s knowledge of the risk to 3 plaintiff. It is also unclear whether she failed to make the recommendation or how her failure to 4 contact outside agencies resulted in plaintiff not getting single-celled. 5 V. Leave to Amend 6 For the reasons set forth above, the court finds that the complaint does not state 7 cognizable claims against defendants Barker and Dutton. However, it appears that plaintiff may 8 be able to allege facts to remedy this and he will be given the opportunity to amend the complaint 9 if he desires. 10 Plaintiff may proceed forthwith to serve defendant Peterson on his claim that Peterson 11 ignored plaintiff’s serious mental health needs or he may delay serving any defendant and amend 12 the complaint. 13 Plaintiff will be required to complete and return the attached notice advising the court how 14 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 15 file an amended complaint. If plaintiff elects to proceed on his claims against defendant Peterson 16 without amending the complaint, the court will proceed to serve the complaint. A decision to go 17 forward without amending the complaint will be considered a voluntarily dismissal without 18 prejudice of defendants Barker and Dutton. 19 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 20 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 21 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 22 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 23 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 24 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 25 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 26 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 27 268 (9th Cir. 1982) (citations omitted). 28 //// 1 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 2 his amended complaint complete. Local Rule 220 requires that an amended complaint be 3 complete in itself without reference to any prior pleading. This is because, as a general rule, an 4 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 5 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 6 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 7 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 8 the original complaint no longer serves any function in the case. Therefore, in an amended 9 complaint, as in an original complaint, each claim and the involvement of each defendant must be 10 sufficiently alleged. 11 VI. Plain Language Summary of this Order for a Pro Se Litigant 12 Your request to proceed in forma pauperis is granted and you are not required to pay the 13 entire filing fee immediately. 14 Some of the allegations in the complaint state claims against the defendants and some do 15 not. Your allegations against defendant Peterson state a claim and Peterson will be required to 16 respond to the complaint. Your allegations against defendants Barker and Dutton do not state 17 claims for relief because you have not shown that they were aware of your serious mental health 18 needs and ignored them. 19 You have a choice to make. You may either (1) proceed immediately on your claim 20 against defendant Peterson and voluntarily dismiss the other defendants, or (2) try to amend the 21 complaint. If you want to go forward without amending the complaint, you will be voluntarily 22 dismissing without prejudice your claims against defendants Barker and Dutton. If you choose to 23 amend your complaint, the amended complaint must include all of the claims you want to make, 24 including the ones that have already been found to state a claim, because the court will not look at 25 the claims or information in the original complaint. Any claims and information not in the 26 amended complaint will not be considered. You must complete the attached notification 27 showing what you want to do and return it to the court. Once the court receives the notice, it will 28 //// 1 || issue an order telling you what you need to do next (i.e. file an amended complaint or wait for 2 || defendants to be served). 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF Nos. 2, 9) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 7 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 || Director of the California Department of Corrections and Rehabilitation filed concurrently 9 || herewith. 10 3. Plaintiff's claims against defendants Barker and Dutton do not state claims for which 11 | relief can be granted. 12 4. Plaintiff has the option to proceed immediately on his Eighth Amendment claim 13 || against defendant Peterson as set forth in Section IV.A above, or to amend the complaint. 14 5. Within fourteen days of service of this order, plaintiff shall complete and return the 15 || attached form notifying the court whether he wants to proceed on the screened complaint or 16 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 17 || will assume that he is choosing to proceed on the complaint as screened and will recommend 18 | dismissal without prejudice of the claims against defendants Barker and Dutton. 19 | DATED: January 12, 2021 ~ 20 Httven— ALLISON CLAIRE 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MEEKO CARRAWAY, No. 2:17-cv-2220 AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 J. PETERSON, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claim against defendant 19 Peterson without amending the complaint. Plaintiff understands that by going forward 20 without amending the complaint he is voluntarily dismissing without prejudice his claims 21 against defendants Barker and Dutton pursuant to Federal Rule of Civil Procedure 41(a). 22 23 _____ Plaintiff wants to amend the complaint. 24 25 DATED:_______________________ 26 Meeko Carraway Plaintiff pro se 27 28