(PC) Small v. Jordan ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 NICHOLAS LEE SMALL, Case No. 2:22-cv-00899-TLN-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 JORDAN, et al., SCREENING ORDER THAT PLAINTIFF: 14 Defendants. (1) PROCEED ONLY WITH HIS FIRST AMENDMENT RETALIATION 15 CLAIMS AGAINST DEFENDANTS BARRIER AND JORDAN; OR 16 (2) DELAY SERVING ANY 17 DEFENDANT AND FILE AN AMENDED COMPLAINT 18 ECF Nos. 1 & 8 19 THIRTY-DAY DEADLINE 20 21 22 23 Plaintiff, a state prisoner proceeding without counsel, alleges that defendants Jordan and 24 Doe violated his Eighth Amendment rights by using excessive force against him. ECF No. 1 at 4. 25 He also alleges that, after force was used against him, defendants Jordan, Barrier, and Barton 26 verbally harassed and threatened him. Id. at 4-6. Finally, he alleges that defendants Jordan and 27 Barrier violated his First Amendment rights by retaliating against him after he filed a grievance 28 related to Jordan’s use of force. Id. at 5-6. Only plaintiff’s retaliation claim is viable. He must 1 choose whether to proceed with that claim or delay serving any defendant and file an amended 2 complaint. I will grant plaintiff’s application to proceed in forma pauperis. ECF No. 8. 3 Screening Order 4 I. Screening and Pleading Requirements 5 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 6 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 7 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 8 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 9 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 10 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 11 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 12 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 13 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 14 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 15 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 16 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 17 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 18 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 19 n.2 (9th Cir. 2006) (en banc) (citations omitted). 20 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 21 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 22 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 23 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 24 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 25 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 26 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 27 II. Analysis 28 Plaintiff alleges that, on December 31, 2021, he had papered over the windows of his cell 1 to prevent “leering inmates” or accidental indecent exposure to female correctional officers. ECF 2 No. 1 at 3. While he was using the toilet in his cell, defendant Jordan and another officer opened 3 the door to his cell for “program.” Id. Plaintiff instinctively put out his hand to prevent the door 4 from opening and, in so doing, sustained injuries to his hands. Id. at 5. This does not amount to a 5 use of excessive force, since the injury to plaintiff’s hand is alleged to have been inadvertent. See 6 Kingsley v. Hendrickson, 576 U.S. 389, 395-96 (2015). 7 Second, plaintiff alleges that, after being escorted from his cell, defendants Jordan and 8 Barrier stood close to him to intimidate him. ECF No. 1 at 4. Then, defendant Barton, a 9 correctional sergeant, was verbally aggressive toward him. Id. at 5. These threats, divorced from 10 any actual attack on plaintiff’s person, do not rise to the level of an Eighth Amendment violation. 11 See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes the eighth amendment to 12 believe a threat constitutes a constitutional wrong.”). 13 Finally, plaintiff alleges that after he filed a prison grievance about defendant Jordan’s 14 conduct, Jordan and Barrier threatened to destroy his property and to make him “disappear” if he 15 did not drop the issue. ECF No. 1 at 6. These allegations are sufficient to state cognizable First 16 Amendment retaliation claims against both defendants. 17 Plaintiff may either proceed only with his First Amendment claims against defendants 18 Jordan and Barrier, or he may delay serving any defendant and file an amended complaint. If 19 plaintiff decides to file an amended complaint, the amended complaint will supersede the current 20 complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). 21 This means that the amended complaint will need to be complete on its face without reference to 22 the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the 23 current complaint no longer serves any function. Therefore, in an amended complaint, as in an 24 original complaint, plaintiff will need to assert each claim and allege each defendant’s 25 involvement in sufficient detail. The amended complaint should be titled “Amended Complaint” 26 and refer to the appropriate case number. 27 Accordingly, it is ORDERED that: 28 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 8, is GRANTED. 1 2. Within thirty days from the service of this order, plaintiff either advise that he wishes 2 | to proceed only with his First Amendment claims against defendants Jordan and Barrier or file an 3 | amended complaint. If he elects to proceed against Jordan and Barrier, he must voluntarily 4 | dismiss his claims against the other defendants. 5 3. Failure to comply with this order may result in the dismissal of this action. 6 4. The Clerk of Court is directed to send plaintiff a complaint form. 7 g IT IS SO ORDERED. Dated: _ August 11, 2022 Q_—— 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28