- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERVIN DEMETRICE RONEY, II, No. 2:23-cv-1324 AC P 12 Plaintiff, 13 v. ORDER 14 P. ARCHIE, 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 declarations that make the showing required by 28 U.S.C. 21 § 1915(a). ECF Nos. 5, 7. 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 Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).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 Archie, Navarro, and Aube violated plaintiff’s 13 rights under the Eighth and Fourteenth Amendments. ECF No. 1. Plaintiff alleges that each of 14 the three defendants denied him equal protection under the law when they beat him with their 15 fists while he was not resisting, and failed to protect him from being assaulted by the other two 16 defendants. 17 IV. Claims for Which a Response Will Be Required 18 Plaintiff has sufficiently alleged facts demonstrating that defendants Archie, Navarro, and 19 Aube violated his rights under the Eighth Amendment1 when they both participated in assaulting 20 him and failed to stop the assault. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (force is 21 excessive if used “maliciously and sadistically to cause harm” (citation omitted)); Farmer v. 22 Brennan, 511 U.S. 825, 834 (1994) (Eighth Amendment violated where prison official is 23 deliberately indifferent to serious risk of harm). 24 //// 25 1 To the extent plaintiff appears to be attempting to allege that defendants’ failure to stop the 26 assault violated the Fourteenth Amendment, those claims are properly analyzed under the Eighth Amendment. See United States v. Lanier, 520 U.S. 259, n.7 (1997) (“[I]f a constitutional claim is 27 covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the 28 rubric of substantive due process.”). 1 V. Failure to State a Claim 2 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all 3 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 4 (1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a 5 plaintiff must show that the defendant acted with an intent or purpose to discriminate against him 6 based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 7 Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Prisoners are not a 8 protected class. See Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (inmates denied 9 tobacco use based on housing location not a protected class). Alternatively, a plaintiff may state 10 an equal protection claim if he shows similarly situated individuals were intentionally treated 11 differently without a rational relationship to a legitimate government purpose. Vill. of 12 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). 13 Plaintiff has not alleged facts demonstrating that he was discriminated against because of 14 his membership in a protected class or that he was treated differently than similarly situated 15 inmates and he therefore fails to state an equal protection claim. 16 VI. Leave to Amend 17 For the reasons set forth above, the court finds that the complaint does not state 18 cognizable equal protection claims against any defendant. However, it appears that plaintiff may 19 be able to allege facts to remedy this and he will be given the opportunity to amend the complaint 20 if he desires. Plaintiff may proceed forthwith to serve defendants Archie, Navarro, and Aube on 21 his Eighth Amendment claims or he may delay serving any defendant and amend the complaint. 22 Plaintiff will be required to complete and return the attached notice advising the court how 23 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 24 file an amended complaint. If plaintiff elects to proceed on his Eighth Amendment claims against 25 defendants Archie, Navarro, and Aube without amending the complaint, the court will proceed to 26 serve the complaint. A decision to go forward without amending the complaint will be 27 considered a voluntarily dismissal without prejudice of the equal protection claims. 28 //// 1 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 2 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 3 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 4 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 5 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 6 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 7 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 8 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 9 268 (9th Cir. 1982) (citations omitted). 10 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 11 his amended complaint complete. Local Rule 220 requires that an amended complaint be 12 complete in itself without reference to any prior pleading. This is because, as a general rule, an 13 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 14 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 15 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 16 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 17 any previous complaints no longer serve any function in the case. Therefore, in an amended 18 complaint, as in an original complaint, each claim and the involvement of each defendant must be 19 sufficiently alleged. 20 VII. Plain Language Summary of this Order for a Pro Se Litigant 21 Your request to proceed in forma pauperis is granted. That means you do not have to pay 22 the entire filing fee now. You will pay it over time, out of your trust account. 23 Some of the allegations in the complaint state claims against the defendants and some do 24 not. You have alleged enough facts to state a claim for a violation of your Eighth Amendment 25 rights against defendants Archie, Navarro, and Aube. You have not alleged enough facts to show 26 that you were denied equal protection because there are no facts showing that you were targeted 27 because of your membership in a protected class or that you were treated differently than other 28 inmates who are similar to you. 1 You have a choice to make. You may either (1) proceed immediately on your Eighth 2 Amendment claims against defendants Archie, Navarro, and Aube and voluntarily dismiss the 3 other claims or (2) try to amend the complaint. If you want to go forward without amending the 4 complaint, you will be voluntarily dismissing without prejudice your equal protection claims. If 5 you choose to file an amended complaint, it must include all claims you want to bring. Once an 6 amended complaint is filed, the court will not look at any information in the original complaint. 7 Any claims and information not in the first amended complaint will not be considered. You 8 must complete the attached notification showing what you want to do and return it to the court. 9 Once the court receives the notice, it will issue an order telling you what you need to do next (i.e. 10 file an amended complaint or wait for defendants to be served). 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF No. 5, 7) are 13 GRANTED. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 16 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 appropriate agency filed concurrently herewith. 18 3. Plaintiff has not stated any equal protection claims against defendants Archie, 19 Navarro, and Aube for which relief can be granted. 20 4. Plaintiff has the option to proceed immediately on his Eighth Amendment claims 21 against defendants Archie, Navarro, and Aube as set forth in Section IV above, or to amend the 22 complaint. 23 5. Within fourteen days of service of this order, plaintiff shall complete and return the 24 attached form notifying the court whether he wants to proceed on the screened complaint or 25 whether he wants to file an amended complaint. If plaintiff does not return the form, the court 26 //// 27 //// 28 //// 1 | will assume that he is choosing to proceed on the complaint as screened and will recommend 2 || dismissal without prejudice of the equal protection claims. 3 || DATED: October 19, 2023 ~ 4 Chthtenr— LMhane_ ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 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 ERVIN DEMETRICE RONEY, II, No. 2:23-cv-1324 AC P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 P. ARCHIE, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claims against 19 defendants Archie, Navarro, and Aube without amending the complaint. Plaintiff 20 understands that by going forward without amending the complaint he is voluntarily 21 dismissing without prejudice his equal protection claims pursuant to Federal Rule of Civil 22 Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 Ervin Demetrice Roney, II Plaintiff pro se 28
Document Info
Docket Number: 2:23-cv-01324
Filed Date: 10/20/2023
Precedential Status: Precedential
Modified Date: 6/20/2024