(PC) Browning v. Burkhart ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELRADER BROWNING, III, No. 2:21-cv-0978 AC P 12 Plaintiff, 13 v. ORDER 14 M. BURKHART, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983.1 ECF Nos. 1, 2, 7, 15. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. Plaintiff has also filed a motion for a settlement conference. ECF No. 11. 21 For the reasons stated below, Plaintiff will be given the opportunity either to amend the 22 complaint or to proceed on the cognizable claims identified herein. In addition, Plaintiff’s motion 23 for a settlement conference will be denied as premature. 24 //// 25 26 1 The Court notes that Plaintiff has filed both an original complaint and a First Amended Complaint (“FAC”). See ECF Nos. 1, 15. A comparison of the two documents reveals that they 27 are identical. Because the FAC is later filed, the Court will refer to it in this screening order. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (amended complaint supersedes original) overruled 28 on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (2012). 1 I. SCREENING REQUIREMENT 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 15 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 16 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 17 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 18 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 19 this standard, the Court must accept as true the allegations of the complaint in question, Hosp. 20 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 21 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 22 McKeithen, 395 U.S. 411, 421 (1969). 23 II. PLAINTIFF’S COMPLAINT 24 Plaintiff, currently an inmate at Kern Valley State Prison (“KVSP”), raises Eighth 25 Amendment excessive force, cruel and unusual punishment, and deliberate indifference claims 26 against Defendants M. Burkhart, M. Liddell, K. Xiong, G. Collinsworth, J. Hulslander and R. 27 Sharp. See ECF No. 15 at 1. The claims appear to stem from a beating Plaintiff received in 28 January 2020 and a contemporaneous administrative segregation cell placement. See generally 1 id. at 3-4. All the Defendants are correctional officers at New Folsom State Prison (“NFSP”). 2 See id. at 3. Plaintiff seeks $50,000.00 in punitive damages from each Defendant. See id. 3 III. CLAIMS FOR WHICH A RESPONSE WILL BE REQUIRED 4 Plaintiff contends that Defendants violated his Eighth Amendment right to be free from 5 excessive force when, in January 2020, they brutally beat him in his cell while his hands were 6 cuffed behind his back in retaliation for Plaintiff’s attempted murder of a correctional officer at 7 KVSP. See ECF No. 15 at 3. As a result of the beating, Plaintiff was left with serious bruises 8 and swelling to his eye, face, and mouth. See id. Plaintiff further contends that the actions 9 Defendants took against him were not done to restore discipline. Rather, he alleges, they were 10 done maliciously and sadistically with intent to cause him harm. See ECF No. 15 at 3. 11 “[W]henever prison officials stand accused of using excessive physical force in violation 12 of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good- 13 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 14 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (brackets added) (referencing Whitley v. Albers, 15 475 U.S. 312 (1986)). 16 Based on the facts provided, Defendants’ acts of slamming Plaintiff to the ground and 17 subsequent punching and kicking him while he was in restraints (see ECF No. 15 at 3) do not 18 appear to be a good faith effort to restore discipline. Therefore, Defendants will be required to 19 respond to these claims. 20 IV. FAILURE TO STATE A CLAIM 21 Plaintiff also claims that his Eighth Amendment rights to be free from cruel and unusual 22 punishment and to be free from deliberate indifference to serious medical need were violated 23 when, for approximately ten days, Defendants placed him in a cell at NFSP that had no running 24 hot water, lights, or power. See ECF No. 15 at 4. He states he was without clothing or bedding 25 and that he had no sanitary toilet to use. See id. He further asserts that his multiple pleas to be 26 moved to another cell were ignored; that Defendants acted with deliberate indifference to his 27 serious medical needs, and that as a result, he was not given medical attention. See id. 28 //// 1 “[A] prison official violates the Eighth Amendment only when two requirements are met. 2 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 3 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 4 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 5 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 6 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). 7 This second prong... “is satisfied by showing (a) a purposeful act or failure to respond to a 8 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 9 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations, punctuation and quotation marks 10 omitted); accord, Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Lemire v. CDCR, 11 726 F.3d 1062, 1081 (9th Cir. 2013). 12 Unlike Plaintiff’s excessive force claim, the Eighth Amendment cruel and unusual 13 punishment and deliberate indifference to serious medical need claims are vague with respect to 14 which act or omission was done by each Defendant. See generally ECF No. 15 at 4. First, it is 15 unclear in the FAC whether Plaintiff’s placement in the cell that had no running hot water, lights 16 or power was related to the beating he received by Defendants, and it is unclear whether the two 17 incidents were close in time to one another. In addition, when speaking of his placement in the 18 dilapidated cell and of the denial of medical treatment, Plaintiff simply refers to “these [sic] group 19 of prison officials,” and “the officials that [he is] suing.” See id. (brackets added). He does not 20 identify which Defendants made the decision to place him in the cell; which Defendants ignored 21 his requests to be moved to another cell; which Defendants ignored his requests for clothing, hot 22 running water, or lights; or which Defendants ignored any requests he may have made to receive 23 medical treatment. See generally id. 24 For these reasons, Plaintiff’s cruel and unusual punishment and deliberate indifference to 25 serious medical need claims do state claims upon which relief may be granted. Plaintiff, 26 however, will be given the opportunity to amend the FAC if he desires. In the alternative, he may 27 opt to proceed solely on the cognizable excessive force claims. A document that will enable 28 Plaintiff to inform the Court of how he would like to proceed is attached to this order. 1 V. MOTION FOR SETTLEMENT CONFERENCE 2 Plaintiff has filed a letter in which he asks the Court to set up a settlement conference for 3 this matter. See generally ECF No. 11. Because Plaintiff has yet to file a complaint that can be 4 served on Defendants, i.e., one in which all claims are cognizable – which is a threshold 5 requirement – Plaintiff’s request for a settlement conference is premature and will be denied as 6 such. 7 VI. LEAVE TO AMEND 8 Plaintiff will be given the opportunity to amend the complaint. If he chooses to file an 9 amended complaint, the Court will dismiss the instant complaint without prejudice, and the newly 10 filed amended complaint will take its place. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th 11 Cir. 2012) (stating amended complaint supersedes original complaint). Any amended complaint 12 filed should observe the following: 13 An amended complaint must identify as a defendant only persons who personally 14 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 15 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 16 constitutional right if he does an act, participates in another's act or omits to perform an act he is 17 legally required to do that causes the alleged deprivation). 18 An amended complaint must also contain a caption including the names of all defendants. 19 Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated 20 claims. See George, 507 F.3d at 607. 21 Any amended complaint must be written or typed so that it is complete in itself without 22 reference to any earlier filed complaint. See E.D. Cal. L.R. 220. This is because an amended 23 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 24 earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 F.2d 55, 25 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being treated 26 thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 27 (2012). 28 //// 1 VII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 2 You have stated a viable Eighth Amendment excessive force claim against Defendants. 3 You have not, however, stated viable Eighth Amendment cruel and unusual punishment or 4 deliberate indifference claims against them. In order to do so, with respect to each of those 5 claims, you must identify which Defendants did what to you, for example, which Defendants 6 placed you in the dilapidated cell or made the decision regarding the placement; which 7 Defendants refused to act when you asked to be moved to a different cell and/or when you asked 8 for hot water, clothing and power; which Defendants failed to get you the proper medical 9 treatment, and so forth. 10 You may proceed only on the viable excessive force claims against Defendants if you 11 would like, or you may amend the complaint to provide the Court with more information about 12 the cruel and unusual punishment and deliberate indifference claims. If you choose to amend the 13 complaint, you will be given thirty days to do so. Any claims not in the amended complaint 14 will not be considered. You must complete the attached notification telling the Court what you 15 would like to do and return it. Once the Court receives the notice, it will issue an order telling 16 you what you need to do next (e.g., file an amended complaint or wait for Defendants to be 17 served). 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Court has screened the complaint and finds that Plaintiff’s general allegations 20 against Defendants M. Burkhart, M. Liddell, K. Xiong, G. Collinsworth, J. Hulslander and R. 21 Sharp do not state claims for which relief may be granted; 22 2. Plaintiff has the option to proceed immediately on his Eighth Amendment excessive 23 force claim against Defendants M. Burkhart, M. Liddell, K. Xiong, G. Collinsworth, J. 24 Hulslander and R. Sharp, dismissing all other claims; 25 3. Within fourteen days of service of this order, Plaintiff shall complete and return the 26 attached form notifying the Court whether he would like to proceed on the screened complaint, or 27 whether he would like to file a Second Amended Complaint. If Plaintiff does not return the form 28 within the time allotted, the Court will assume that he is choosing to proceed on the complaint as 1 | screened, and it will recommend dismissal without prejudice of the Eighth Amendment cruel and 2 || unusual punishment and deliberate indifference claims that have been generally alleged against 3 | Defendants M. Burkhart, M. Liddell, K. Xiong, G. Collinsworth, J. Hulslander and R. Sharp, and 4 4. Plaintiff's motion for a settlement conference (ECF No. 11) 1s DENIED as premature. 5 || DATED: March 1, 2022 ~ 6 Lhar—e_ ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE 8 9 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 ELRADER BROWNING, III, No. 2:21-cv-0978 AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 M. BURKHART, et al., 15 Defendants. 16 CHECK ONE: 17 Plaintiff would like to proceed immediately on his Eighth Amendment excessive force 18 claims against Defendants M. Burkhart, M. Liddell, K. Xiong, G. Collinsworth, J. Hulslander and 19 R. Sharp. By choosing to go forward without amending the complaint, Plaintiff understands that 20 he is voluntarily dismissing without prejudice his Eighth Amendment cruel and unusual 21 punishment and deliberate indifference claims against Defendants M. Burkhart, M. Liddell, K. 22 Xiong, G. Collinsworth, J. Hulslander and R. Sharp pursuant to Federal Rule of Civil Procedure 23 41(a)(1)(A)(i). 24 Plaintiff would like to amend the complaint. 25 26 DATED: _______________________________ 27 ELRADER BROWNING, III Plaintiff Pro Se 28