(PC) Flannery v. Holstein ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORVAL FLANNERY, No. 2:22-cv-01518 DB P 12 Plaintiff, 13 v. ORDER 14 HOLSTEIN, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff 18 claims defendants violated his Fourth, Eighth, and Fourteenth Amendment rights when plaintiff 19 was subject to an involuntary cavity search. Presently before the court is plaintiff’s complaint for 20 screening (ECF No. 1) and plaintiff’s motion to proceed in forma pauperis (ECF No. 2). 21 For the reasons set forth below, plaintiff’s motion to proceed in forma pauperis will be 22 granted. Plaintiff will be given the option to proceed on his cognizable claims or be given leave 23 to file an amended complaint. 24 IN FORMA PAUPERIS 25 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 26 1915(a). (ECF No. 2.) Accordingly, plaintiff’s request to proceed in forma pauperis will be 27 granted. 28 //// 1 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 2 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 3 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 4 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 5 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 6 of twenty percent of the preceding month’s income credited to plaintiff’s inmate trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 8 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 9 1915(b)(2). 10 SCREENING 11 I. Legal Standards 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 14 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 15 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 16 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 17 U.S.C. § 1915A(b)(1) & (2). 18 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 19 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 20 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 21 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 22 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 23 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 24 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 25 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 26 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 27 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 28 //// 1 However, in order to survive dismissal for failure to state a claim a complaint must 2 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 3 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 4 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 5 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 6 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 7 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 8 The Civil Rights Act under which this action was filed provides as follows: 9 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 10 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 11 or other proper proceeding for redress. 12 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 13 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 14 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 15 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 16 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 17 an act which he is legally required to do that causes the deprivation of which complaint is made.” 18 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 20 their employees under a theory of respondeat superior and, therefore, when a named defendant 21 holds a supervisorial position, the causal link between him and the claimed constitutional 22 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 23 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 24 concerning the involvement of official personnel in civil rights violations are not sufficient. See 25 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 II. Linkage Requirement 27 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 28 that each defendant personally participated in the deprivation of his rights. See Jones v. 1 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 2 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 3 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 4 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 5 Government officials may not be held liable for the actions of their subordinates under a 6 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 7 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 8 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 9 violated the Constitution through his own individual actions by linking each named defendant 10 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 11 Id. at 676. 12 III. Allegations in the Complaint 13 Plaintiff indicates that, at all relevant times, he was an inmate at the Amador County Jail. 14 (ECF No. 1 at 2.) Plaintiff names Correctional Sergeant Holstein, Jackson Police Department 15 (“JPD”) Lieutenant Daniel Barb, JPD Investigator Robert Harmon, and Amador Sutter Hospital 16 (“SAH”) Nurse Jane Doe as defendants in this action. (Id. at 5.) 17 The complaint contains the following allegations: while a pretrial detainee at Amador 18 County Jail, plaintiff was transferred to SAH with two other inmates as it was believed the three 19 inmates had overdosed on fentanyl. (Id. at 2.) After plaintiff was “medically cleared,” defendant 20 Holstein asked plaintiff to submit to a digital cavity search. (Id.) Plaintiff refused but stated he 21 would submit to alterative search options. (Id.) Defendant Holstein spoke with defendants Barb 22 and Harmon in the hallway. (Id.) When Holstein returned, he changed the position of the 23 handcuffs on plaintiff and the two other inmates so that they were all laying on their sides. (Id.) 24 Defendant Doe later entered and performed digital cavity searches on all of the inmates. (Id.) 25 Plaintiff was “the last inmate searched and…tried to protest both verbally and by shifting [his] 26 body….” (Id. at 3.) Plaintiff feared contracting Hepatitis C as one of the other inmates had it and 27 defendant Doe “used the same glover for the other 2 inmates and did not change it when she came 28 to [plaintiff.]” (Id.) Defendant Doe eventually succeeded in performing the cavity search “and 1 spent a significantly longer period of time during my search as with the other inmates.” (Id.) 2 Plaintiff noted defendant Barb and Harmon “standing by the open door and openly laughing.” 3 (Id.) As a result of this search, his rectum bled due to a tear in his bowel. (Id.) 4 Plaintiff claims that there was no warrant for the digital cavity search and that it was done 5 against his will. (Id. at 4.) He asserts that he did not knowingly take fentanyl but that he drank 6 from a cup of water and later woke up in an ambulance. (Id.) Plaintiff states that he faced no 7 disciplinary action. (Id.) 8 In the complaint, plaintiff argues that defendants Holstein, Barb, Harmon, and Doe 9 violated his rights by “either ordering or failing to intervene in the digital cavity search without a 10 warrant and against [plaintiff’s] will.” (Id.) Plaintiff states that he seeks one million dollars 11 ($1,000,000) in damages but does not include any other details regarding the monetary relief 12 sought. (Id. at 8.) 13 IV. Does Plaintiff State a Claim under § 1983? 14 Plaintiff states that he seeks to bring claims for violation of his Fourth, Eighth, and 15 Fourteenth Amendment rights. (Id.) He does not elaborate on the nature of these claims further 16 or identify which defendants plaintiff believes violated each of these rights. Out of an abundance 17 of caution, the court will attempt to determine the nature of plaintiff’s claims in connection with 18 each right and screen all defendants in connection with that claim. 19 A. Fourth Amendment 20 1. Legal Standards 21 The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. 22 Amend IV. Lawful incarceration necessarily entails limitations upon many of the rights enjoyed 23 by ordinary citizens. Hudson v. Palmer, 468 U.S. 517, 524 (1984); Pell v. Procunier, 417 U.S. 24 817, 822 (1974). However, in the Ninth Circuit, a digital bodily cavity only complies with the 25 Fourth Amendment if: (1) prison officials have reasonable cause to search the inmate, (2) the 26 search serves a valid penological need, and (3) the search is conducted in a reasonable manner. 27 Wiley v. Serrano, 37 Fed. Appx. 252, 253 (9th Cir. 2002). Determining the reasonableness of a 28 search requires that the court “consider a variety of factors including hygiene, medical training, 1 emotional and physical trauma, and the availability of alternative methods for conducting the 2 search.” United States v. Fowlkes, 804 F.3d 954, 963 (2015). “[T]he process for removing 3 suspected contraband from a detainee's body, if it is to comport with the reasonableness standard 4 of the fourth amendment, must be conducted with regard for the subject's privacy and be designed 5 to minimize emotional and physical trauma.” Id. at 964. (citation omitted) (quoting United States 6 v. Cameron, 538 F.2d 254, 258 (1976). 7 2. Analysis 8 For the purposes of screening, plaintiff has alleged sufficient facts to state a Fourth 9 Amendment claim for an unreasonable search. It is possible defendants had reasonable cause and 10 a valid penological interest in conducting a cavity search but plaintiff has alleged sufficient facts 11 to establish on screening that defendants may have failed to conduct the search in a reasonable 12 manner. Taking the allegations in the complaint as true, the digital cavity search was conducted 13 on plaintiff with gloves used on two other inmates, in the presence of those inmates, while 14 officers watched from the open doorway and laughed at plaintiff. These facts, if true, support that 15 the search was not conducted in a reasonable manner and violated plaintiff’s Fourth Amendment 16 rights. 17 As it appears from the alleged facts that all defendants were involved with the purported 18 unreasonable search, plaintiff has alleged sufficient facts on screening to state a cognizable 19 Fourth Amendment claim against defendants Holstein, Barb, Harmon, and Doe. 20 B. Eighth Amendment 21 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 22 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 23 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 24 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 25 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 26 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 27 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 28 //// 1 The deliberate indifference standard involves an objective and subjective prong. First, the 2 alleged deprivation must be, in objective terms, “sufficiently serious . . . .” Farmer v. Brennan, 3 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison 4 official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .” 5 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment 6 for denying humane conditions of confinement only if he knows that inmates face a substantial 7 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837- 8 45. 9 1. Legal Standards for Medical Needs Claims 10 If a prisoner’s Eighth Amendment claim arises in the context of medical care, including 11 mental health care, the prisoner must allege and prove “acts or omissions sufficiently harmful to 12 evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth 13 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and 14 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 15 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 16 Cir. 1997) (en banc). 17 A medical need is serious “if the failure to treat the prisoner’s condition could result in 18 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 19 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 20 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. 21 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 22 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 23 825, 834 (1994). 24 If a prisoner establishes the existence of a serious medical need, he must show that prison 25 officials responded to the serious medical need with deliberate indifference. See Id. at 834. In 26 general, deliberate indifference may be shown when prison officials deny, delay, or intentionally 27 interfere with medical treatment, or may be shown by the way in which prison officials provide 28 medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). 1 Before it can be said that a prisoner’s civil rights have been abridged with regard to 2 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 3 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 4 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 5 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 6 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 7 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 8 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 9 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. 10 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 11 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 12 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 13 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 14 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 15 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 16 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 17 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to 18 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 19 Finally, mere differences of opinion between a prisoner and prison medical staff or 20 between medical professionals as to the proper course of treatment for a medical condition do not 21 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 22 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 23 F.2d 1337, 1344 (9th Cir. 1981). 24 2. Analysis of Medical Needs Claim 25 It is not clear the exact nature of the Eighth Amendment claim plaintiff seeks to bring. 26 From the facts alleged in the complaint, it appears likely plaintiff intended to bring an Eighth 27 Amendment claim for deliberate indifference to plaintiff’s medical need. However, while it is 28 possible that plaintiff could state an Eighth Amendment claim, the factual allegations in the 1 complaint are currently insufficient to support such a claim. To state a medical need claim, 2 plaintiff must satisfy the subjective knowledge requirement by showing that defendants were 3 aware of and disregarded plaintiff’s serious medical need. Farmer, 511 U.S. at 837-45. The 4 complaint does not contain sufficient factual allegations to show that defendants were aware of 5 plaintiff had a serious medical need. 6 Accordingly, plaintiff has failed to allege sufficient facts to state an Eighth Amendment 7 medical needs claim against defendants. Plaintiff will be given the option to proceed on his 8 cognizable claims or be given leave to file an amended complaint in which he can seek to state an 9 Eighth Amendment claim. 10 C. Fourteenth Amendment 11 1. Legal Standards 12 The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 13 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 14 that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (quotation 15 marks omitted). In order to state a cause of action for deprivation of procedural due process, a 16 plaintiff must first establish the existence of a liberty interest for which protection is sought. 17 A state may “create liberty interests which are protected by the Due Process Clause.” 18 Sandin, 515 U.S. at 483-84. A prisoner has a liberty interest protected by the Due Process Clause 19 only where the restraint “‘imposes atypical and significant hardship on the inmate in relation to 20 the ordinary incidents of prison life.’” Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) 21 (quoting Sandin, 515 U.S. at 484). A plaintiff must assert a dramatic departure from the standard 22 conditions of confinement before due process concerns are implicated. Sandin, 515 U.S. at 485- 23 86; Keenan, 83 F.3d at 1088-89. 24 The Equal Protection Clause requires that persons who are similarly situated be treated 25 alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Hartmann v. Calif. 26 Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 27 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). State prison 28 inmates retain a right to equal protection of the laws guaranteed by the Fourteenth Amendment. 1 Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Lee v. Washington, 390 U.S. 333, 2 334 (1968)). An equal protection claim may be established by showing that defendants 3 intentionally discriminated against plaintiff based on his membership in a protected class, 4 Hartmann, 707 F.3d at 1123, or that similarly situated individuals were intentionally treated 5 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Dept. 6 of Agriculture, 553 U.S. 591, 601-02 (2008). 7 2. Analysis 8 As with plaintiff’s other claims, plaintiff does not provide any details about the type of 9 Fourteenth Amendment claim plaintiff intended to include in the complaint. However, it does not 10 appear that the complaint contains factual allegations sufficient to support a due process or an 11 equal protection claim. Plaintiff has not alleged facts that establish that he had a protected liberty 12 interest. As such, plaintiff has not alleged sufficient facts to state a Fourteenth Amendment due 13 process claim. Keenan, 83 F.3d at 1088. Similarly, the complaint fails to state an equal 14 protection claim as the factual allegations do not establish that plaintiff was either discriminated 15 against based on membership in a protected class or that he was treated differently without a 16 rational relationship to a legitimate state purpose. Hartmann, 707 F.3d at 1123; Engquist, 553 17 U.S. at 601-02. As plaintiff may be able to state a Fourteenth Amendment claim, plaintiff will be 18 given the option to proceed on his cognizable claims or be given leave to file an amended 19 complaint. 20 AMENDING THE COMPLAINT 21 As set forth above, plaintiff has alleged sufficient facts to state a cognizable Fourth 22 Amendment claim against defendants. Plaintiff has failed to allege sufficient facts to state any 23 other claim. Plaintiff will be given the option to proceed on his cognizable Fourth Amendment 24 claim or be given leave to file an amended complaint. 25 If plaintiff chooses to file an amended complaint, any amended complaint must be 26 complete in itself. The court cannot refer to a prior complaint to understand the plaintiff’s claims. 27 In an amended complaint plaintiff must clearly identify each defendant and the action that 28 defendant took that violated plaintiff’s constitutional rights. The court is not required to review 1 exhibits to determine what plaintiff’s charging allegations are as to each named defendant. If 2 plaintiff wishes to add a claim, he must include it in the body of the complaint. The charging 3 allegations must be set forth in the amended complaint, so defendants have fair notice of the 4 claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support 5 of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. 6 Civ. P. 8(a). 7 Any amended complaint must show the federal court has jurisdiction, the action is brought 8 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 9 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 10 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 11 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 12 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 13 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 14 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 15 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 16 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 17 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 18 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 19 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 20 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 21 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 22 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 23 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 24 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 25 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 26 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 27 An amended complaint must be complete in itself, without reference to any prior pleading. 28 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 1 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 2 evidentiary support for his allegations, and for violation of this rule, the court may impose 3 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 4 DOE DEFENDANTS 5 Under § 1983, plaintiff must demonstrate that each named defendant personally 6 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 This requires the presentation of factual allegations sufficient to state a plausible claim for relief. 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 9 Cir. 2009). The statute clearly requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See 11 Monell, 436 U.S. 692. In order to state a cognizable claim, plaintiff must set forth specific factual 12 allegations demonstrating how each defendant violated his rights. See Leer v. Murphy, 844 F.2d 13 628, 634 (9th Cir. 1988). 14 The use of John Does in pleading practice is generally disfavored – but it is not prohibited. 15 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 16 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). 17 Eventually plaintiff may be afforded an opportunity for limited, preliminary discovery to identify 18 the names of the John Does “unless it is clear that discovery would not uncover their identities,” 19 Gillespie, 629 F.2d at 642, and only after the court is satisfied he has exhausted every other 20 possibility of finding their names. Since by this order plaintiff will be granted the option to file 21 an amended complaint, he must use the time given to amend to do everything he can to supply the 22 names of the Doe defendants without further assistance from the court. He may seek extensions 23 of time for the filing of an amended complaint for that purpose if necessary. 24 Further, “John Doe” defendant liability must also be properly alleged. A plaintiff may use 25 “Doe” designations to refer to defendants whose names are unknown; however, he must number 26 them in the complaint, e.g., “John Doe 1,” “John Doe 2,” so that each numbered John Doe refers 27 to a specific person. If plaintiff chooses to file an amended complaint, he shall either name the 28 defendants involved or list the Doe defendants involved and describe what each did to violate his 1 | rights. If plaintiff can only list these defendants as John Doe, plaintiff should allege specific acts 2 || that each Doe defendant did, such as “John Doe 1 did X” and John Doe 2 did Y.” Alexander v. 3 | Tilton, No. 1:07-cv-0759 LJO DLB, 2009 WL 464486, *5 (E.D. Cal. Feb. 24, 2009) 4 CONCLUSION 5 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 6 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is 8 assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 9 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to 10 the Sheriff of Amador County filed concurrently herewith. 11 3. The complaint (ECF No. 1) states a cognizable Fourth Amendment claim against 12 defendants Holstein, Daniel Barb, Robert Harmon, and Nurse Jane Doe. 13 4. The complaint fails to state any other cognizable claims or defendants. 14 5. Plaintiff may choose to proceed on his cognizable claims set out above or he may choose 15 to amend his complaint. 16 6. Within thirty (30) days of the date of this order plaintiff shall notify the court of how he 17 wishes to proceed. Plaintiff may use the form included with this order for this purpose. 18 7. Plaintiff is warned that his failure to comply with this order will result in a 19 recommendation that this action be dismissed. 20 21 | Dated: March 30, 2023 23 A -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 | DB:14 DB/DB Prisoner Inbox/Civil Rights/S/flan1518.scrn_not 28 13 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 ORVAL FLANNERY, No. 2:22-cv-01518 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 HOLSTEIN, et al., 13 Defendants. 14 15 Check one: 16 17 _____ Plaintiff wants to proceed immediately on his Fourth Amendment claims against 18 defendants Holstein, Daniel Barb, Robert Harmon, and Nurse Jane Doe. Plaintiff 19 understands that by going forward without amending the complaint he is voluntarily 20 dismissing all other claims and defendants. 21 22 ____ Plaintiff wants to amend the complaint. 23 24 DATED:_______________________ 25 Orval Flannery Plaintiff pro se 26 27 28