(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 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, 4. 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). 6 The 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 Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).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 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint alleges that defendants Pickett and Harlan violated plaintiff’s rights under 13 the Eighth Amendment. ECF No. 1. Plaintiff alleges that he requested a cell move or repair 14 because the frigid temperatures caused him to experience pain and the ceiling, floors, and walls 15 were constantly wet. Id. at 3. Due to the slippery floor, plaintiff fell and hit his head. He has 16 explained the issues on the plumbers worksheet and reported the issues to floor officers on several 17 occasions. Id. 18 IV. Failure to State a Claim 19 “Liability under § 1983 must be based on the personal involvement of the defendant,” 20 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 21 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil 22 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) 23 (citations omitted). Plaintiff does not make any allegations against defendants Pickett and Harlan 24 and therefore fails to state any claims against these defendants. To the extent plaintiff may be 25 naming these individuals because they are supervisors, “[t]here is no respondeat superior liability 26 under section 1983.” Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted); Starr 27 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (supervisor can be liable for his personal 28 involvement or if there is a sufficient causal connection between supervisor’s conduct and 1 violation (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989))). In other words, the fact 2 that a person is in a supervisory position does not make them responsible for the actions of their 3 subordinates unless they had some kind of involvement in their subordinates’ conduct. 4 V. Leave to Amend 5 The complaint does not state any cognizable claims for relief and plaintiff will be given an 6 opportunity to file an amended complaint. If plaintiff chooses to file a first amended complaint, 7 he must demonstrate how the conditions about which he complains resulted in a deprivation of his 8 constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The complaint must also 9 allege in specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. 10 Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 11 unless there is some affirmative link or connection between a defendant’s actions and the claimed 12 deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and 13 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 14 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 17 complete in itself without reference to any prior pleading. This is because, as a general rule, an 18 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 19 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 20 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 21 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 22 complaint, the original complaint no longer serves any function in the case. Therefore, in an 23 amended complaint, as in an original complaint, each claim and the involvement of each 24 defendant must be sufficiently alleged. 25 VI. Plain Language Summary of this Order for a Pro Se Litigant 26 Your request to proceed in forma pauperis is granted. That means you do not have to pay 27 the entire filing fee now. You will pay it over time, out of your trust account. 28 Your complaint will not be served because the facts you alleged are not enough to state a 1 | claim. You have not alleged any facts showing any conduct by the named defendants. You may 2 || amend your complaint to try to fix these problems. Be sure to provide facts that show exactly 3 || what each defendant did to violate your rights or to cause a violation of your rights. 4 You may amend your complaint to try to fix these problems. Be sure to provide facts that 5 || show exactly what each defendant did to violate your rights or to cause a violation of your rights. 6 If you choose to file a first amended complaint, it must include all claims you want to 7 || bring. Once an amended complaint is filed, the court will not look at any information in the 8 | original complaint. Any claims and information not in the first amended complaint will not 9 | be considered. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 || appropriate agency filed concurrently herewith. 16 3. Plaintiffs complaint fails to state a claim upon which relief may be granted, see 28 17 | U.S.C. § 1915A, and will not be served. 18 4. Within thirty days from the date of service of this order, plaintiff may file an amended 19 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 20 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 21 || number assigned this case and must be labeled “First Amended Complaint.” Failure to file an 22 || amended complaint in accordance with this order will result in a recommendation that this action 23 || be dismissed. 24 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 25 | form used in this district. 26 || DATED: October 10, 2023 ted oo fA /, 27 ALLISON CLAIRE 38 UNITED STATES MAGISTRATE JUDGE