(PC) Hendrix v. California Department of Corrections and Rehabilitation ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCELL T. HENDRIX, No. 2:22-cv-1319 CKD P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPT. OF CORR. AND REHAB., et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 ///// 28 ///// 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 ///// 28 ///// 1 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 2 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The 3 court will, however, grant leave to file an amended complaint. 4 Plaintiff seeks damages for injuries sustained by him on August 1, 2021 when he fell 5 while trying to climb to a top bunk from a desk and for injuries to a finger sustained on August 6 15, 2021 when plaintiff attempted to close the door to his cell. Both incidents occurred at the 7 California Health Care Facility (CHCF) in Stockton. Plaintiff seeks relief under the Americans 8 with Disabilities Act (ADA), 42 U.S.C § 12101 et seq.1 The defendants are the California 9 Department of Corrections and Rehabilitation and Hensel Phelps Construction who, according to 10 plaintiff, built CHCF. 11 The main problem with plaintiff’s claims is that he does not allege that he has any 12 qualifying disability. He simply alleges he was injured as the result of conditions of confinement. 13 In order to adequately allege a claim for harmful conditions of confinement under the Eighth 14 Amendment, plaintiff must point to facts indicating he sustained injury as the result of a prison 15 official’s deliberate indifference to a substantial risk of serious harm. Farmer v. Brennan, 511 16 U.S. 825, 834, 837 (1994). He has not done so in his original complaint. 17 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 18 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 19 complete in itself without reference to any prior pleading. This is because, as a general rule, an 20 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 21 Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 22 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 23 and the involvement of each defendant must be sufficiently alleged. 24 ///// 25 ///// 26 27 1 Plaintiff also brings claims under the Rehabilitation Act, 42 U.S.C. § 794. The rights conferred by the ADA and the Rehabilitation Act are essentially the same. Zuke v. Regents of University of 28 California, 166 F.3d 1041, 1045 n. 11 (9th Cir.1999) 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 4 || shall be collected and paid in accordance with this court’s order to the Director of the California 5 || Department of Corrections and Rehabilitation filed concurrently herewith. 6 3. Plaintiff's complaint is dismissed. 7 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 9 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 10 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 11 || amended complaint in accordance with this order will result in a recommendation that this action 12 || be dismissed. 13 | Dated: August 19, 2022 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 1 hend1319.14 19 20 21 22 23 24 25 26 27 28