(PC) Cox v. Pickett ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT HENRY COX, JR., No. 2:22-cv-0154 AC P 12 Plaintiff, 13 v. ORDER 14 J. PICKETT, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. 18 Plaintiff was given an opportunity to file an amended complaint after the original complaint was 19 screened and found to not state any claims for relief. ECF No. 10. Plaintiff has filed a first 20 amended complaint. ECF No. 14. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against “a 23 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 24 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. First Amended Complaint 2 The first amended complaint alleges that defendants Valdez, Kelly, Pickett, and Perval 3 violated plaintiff’s rights under the Eighth Amendment. ECF No. 14. Plaintiff alleges that for 4 five months he was housed in a cell that leaked water from the walls and ceiling, making his cell 5 unsafe because he is disabled. Id. at 3. He notified Valdez and Perval, who he identifies as floor 6 officers, on numerous occasions that there was water leading into his cell. Id. at 2-3, 7. They told 7 him that there were no other ADA cells to move him into and gave him towels each day to wipe 8 up the water. Id. As correctional officers, Valdez and Perval did not have authority to move 9 plaintiff to another cell but notified their supervisor, Kelly, about the water and put in work 10 orders. Id. at 5, 7. Kelly was aware of the water in the cell and, as a sergeant, had the authority to 11 move plaintiff to another cell but failed to do so. Id. at 4. Kelly told plaintiff that he contacted 12 Pickett about the water and the fact that it had no one had come to repair it and that Pickett had 13 the authority to have the plumbing fixed on an emergency basis. Id. at 3. Plaintiff eventually 14 slipped in his cell and was sent to the hospital, at which point someone finally came and fixed the 15 leak. Id. 16 III. Failure to Protect 17 “[A] prison official violates the Eighth Amendment only when two requirements are met. 18 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 19 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 20 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 21 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 22 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 23 official is not liable under the Eighth Amendment unless he “knows of and disregards an 24 excessive risk to inmate health or safety.” Id. at 837. Then he must fail to take reasonable 25 measures to lessen the substantial risk of serious harm. Id. at 847. 26 Although plaintiff does not specify his disability, it can be inferred from the allegations 27 that he has a disability that affects his mobility, making a slippery floor especially dangerous. 28 Plaintiff has therefore alleged sufficient facts to state a claim against Kelly and Pickett, since they 1 had the authority to move plaintiff to another cell or order the repairs be expedited and failed to 2 do so despite knowing about the risk of plaintiff slipping due to the water in his cell. However, 3 plaintiff fails to state a claim against Valdez or Perval. Neither defendant had the authority to 4 move plaintiff to another cell, and the allegations show that they regularly provided plaintiff with 5 towels to wipe up the water; notified Kelly about the situation; and put in work orders to try and 6 get the leak fixed. It therefore appears that Valdez and Perval took reasonable measures to lessen 7 the risk of harm to plaintiff. 8 IV. Leave to Amend 9 For the reasons set forth above, the court finds that the complaint does not state 10 cognizable claims against defendants Valdez and Perval. However, it appears that plaintiff may 11 be able to allege facts to remedy this and he will be given the opportunity to amend the complaint 12 if he desires. Plaintiff may proceed forthwith to serve defendants Kelly and Pickett, or he may 13 delay serving any defendant and amend the complaint. 14 Plaintiff will be required to complete and return the attached notice advising the court how 15 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 16 file an amended complaint. If plaintiff elects to proceed on his claims against defendants Kelly 17 and Pickett without amending the complaint, the court will proceed to serve the complaint. A 18 decision to go forward without amending the complaint will be considered a voluntarily dismissal 19 without prejudice of all claims against defendants Valdez and Perval. 20 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 21 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 22 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 23 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 24 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 25 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 26 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 27 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 28 268 (9th Cir. 1982) (citations omitted). 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 any prior complaints. 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 any previous complaints no longer serve 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 V. Plain Language Summary of this Order for a Pro Se Litigant 12 Some of the allegations in the complaint state claims against the defendants and some do 13 not. You have stated a claim for failure to protect against Kelly and Pickett, but not against 14 Valdez and Perval. 15 You have a choice to make. You may either (1) proceed immediately on your failure to 16 protect claim against Kelly and Pickett and voluntarily dismiss the other defendants or (2) try to 17 amend the complaint. If you want to go forward without amending the complaint, you will be 18 voluntarily dismissing without prejudice your claims against Valdez and Perval. If you choose to 19 file an amended complaint, it must include all claims you want to bring. Once an amended 20 complaint is filed, the court will not look at any information in the original complaint. Any 21 claims and information not in the second amended complaint will not be considered. You 22 must complete the attached notification showing what you want to do and return it to the court. 23 Once the court receives the notice, it will issue an order telling you what you need to do next (i.e. 24 file an amended complaint or wait for defendants to be served). 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s claims against defendants Valdez and Perval do not state claims for which 27 relief can be granted. 28 2. Plaintiff has the option to proceed immediately on his failure to protect claim against 1 | defendants Kelly and Pickett as set forth in Section III above, or to amend the complaint. 2 3. Within fourteen days of service of this order, plaintiff shall complete and return the 3 || attached form notifying the court whether he wants to proceed on the screened complaint or 4 || whether he wants to file an amended complaint. If plaintiff does not return the form, the court 5 || will assume that he is choosing to proceed on the complaint as screened and will recommend 6 || dismissal without prejudice of all claims against defendants Valdez and Perval. 7 || DATED: November 8, 2023 ~ 8 Htttenr— Lhor—e_ ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 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 ALBERT HENRY COX, JR., No. 2:22-cv-0154 AC P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 J. PICKETT, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his failure to protect claim against defendants 19 Kelly and Pickett without amending the complaint. Plaintiff understands that by going 20 forward without amending the complaint he is voluntarily dismissing without prejudice all 21 claims against defendants Valdez and Perval pursuant to Federal Rule of Civil Procedure 22 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 Albert Henry Cox, Jr. Plaintiff pro se 28