(PC) Wilkins v. Heslop ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, No. 2:20-cv-01622 KJM DB P 12 Plaintiff, 13 v. ORDER 14 S. HESLOP, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se, filed this action in the San Joaquin County Superior 18 Court. Defendants removed the present action pursuant to 28 U.S.C. §1441(a) as plaintiff asserts 19 claims under 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims defendants used unnecessary force, 20 retaliated against the plaintiff, and violated his due process and equal protection rights. Plaintiff 21 also asserts a number of claims under the California Civil Code. Before the court is plaintiff’s 22 Second Amended Complaint (“SAC”) for screening. (ECF No. 20.) 23 For the reasons stated below, plaintiff will be given the option to proceed on his 24 cognizable claims or be given leave to file an amended complaint. 25 SCREENING 26 I. Legal Standards 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 2 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 3 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 4 U.S.C. § 1915A(b)(1) & (2). 5 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 7 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 8 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 9 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 10 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 11 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 12 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 13 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 However, in order to survive dismissal for failure to state a claim a complaint must 16 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 17 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 18 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 19 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 20 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 21 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 22 The Civil Rights Act under which this action was filed provides as follows: 23 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 24 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, 25 or other proper proceeding for redress. 26 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 27 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 28 1 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 2 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 3 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 4 an act which he is legally required to do that causes the deprivation of which complaint is made.” 5 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 6 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 7 their employees under a theory of respondeat superior and, therefore, when a named defendant 8 holds a supervisorial position, the causal link between him and the claimed constitutional 9 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 10 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 11 concerning the involvement of official personnel in civil rights violations are not sufficient. See 12 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 13 II. Linkage Requirement 14 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 15 that each defendant personally participated in the deprivation of his rights. See Jones v. 16 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 17 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 18 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 19 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 20 Government officials may not be held liable for the actions of their subordinates under a 21 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 22 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 23 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 24 violated the Constitution through his own individual actions by linking each named defendant 25 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 26 Id. at 676. 27 //// 28 //// 1 III. Allegations in the SAC 2 Plaintiff’s factual allegations in the SAC are copied directly from the factual allegations 3 contained in the FAC except for additions related to defendant Eldridge and plaintiff’s state law 4 claims. Accordingly, many of the factual allegations detailed here will be identical to those in the 5 court’s prior screening order. (See ECF No. 18.) 6 At all relevant times, plaintiff was an inmate at California Health Care Facility (“CHCF”). 7 (ECF No. 20 at 1.) The complaint names as defendants: California Department of Corrections 8 and Rehabilitation (“CDCR”) Correctional Counselor S. Heslop, CDCR Correctional Lieutenant 9 B. Velasquez, CDCR Correctional Officer A. Sawma, and CHCF Warden L. Eldridge. (Id. at 2.) 10 In his complaint, plaintiff alleges the following: on January 17, 2019, plaintiff “exercised 11 his statutory right to refuse First Staff Assistant S. Heslop” as he did not feel safe around him 12 based on previous comments defendant Heslop made. (Id. at 3.) Plaintiff first informed his 13 counselor that he felt unsafe around defendant Heslop around 9:00 a.m. (Id.) “After 14 approximately 20 minutes into group,” defendant Heslop arrived and asked to speak with the 15 plaintiff. (Id.) Plaintiff said he did not want to do so as he felt uncomfortable and unsafe with 16 defendant Heslop. (Id.) Defendant Heslop told the other inmates and the group facilitator to exit 17 the room. (Id. at 4.) After they did so defendant Heslop approached the inmate “in a threatening 18 manner.” (Id.) Plaintiff feared for his safety and called for help from the “Mental Health Clinic 19 officers.” (Id.) Correctional Officer Lene arrived and plaintiff informed Officer Lene that “he 20 felt unsafe and threatened by Heslop.” (Id.) Defendant Heslop yelled that plaintiff had to talk to 21 him as plaintiff was a convicted felon. (Id.) Plaintiff restated that he feared for his safety and 22 defendant Heslop left the room. (Id.) 23 After the other inmates and group facilitator reentered the room, defendant Heslop 24 returned and “told the plaintiff he had to leave his priority mental health group.” (Id. at 4-5.) 25 Plaintiff complied as Officer Lene informed him he had to leave the room. (Id. at 5.) When 26 plaintiff was outside, defendant Heslop told plaintiff that he would take plaintiff back to 27 plaintiff’s unit. (Id.) Plaintiff again told Officer Lene that he felt unsafe alone with defendant 28 Heslop. (Id.) Defendant Heslop “aggressively grabbed Plaintiff angrily and with force shoved 1 him against the wall.” (Id.) Defendant Heslop then placed plaintiff in handcuffs causing an “A/C 2 separated left shoulder” causing plaintiff “extreme pain.” (Id.) When defendant Heslop 3 attempted to force the plaintiff to walk, plaintiff fell to the ground. (Id. at 5-6.) Officer Lene then 4 intervened and took over transporting the plaintiff with Officer Vang. (Id. at 6.) 5 Once plaintiff was again released, he informed Captain Romero of defendant Heslop’s 6 actions. (Id.) Captain Romero directed plaintiff to go to the clinic to be treated for his injury and 7 pain. (Id.) At the clinic, plaintiff was told by Clinic Officer Langford that he needed to put in a 8 “sick call slip” to be seen. (Id.) On January 8, 2019, plaintiff received medical attention 9 including an X-Ray of his shoulder. (Id.) 10 Following the above incident, “[p]laintiff sought redress against Heslop.” (Id. at 7.) “[I]n 11 retaliation…Heslop wrote a retaliatory write-up with false statements that resulted in 90 days of 12 most serious punishment.” (Id.) Defendant Sawma “served the write-up” to plaintiff on or 13 around January 11, 2019. (Id. at 9.) Defendant Sawma told plaintiff that “she was his staff 14 assistant.” (Id.) On January 25, 2019, plaintiff’s disciplinary hearing was held. (Id. at 10) 15 Defendant Sawma did not meet with or provide assistance to plaintiff prior to the hearing. (Id.) 16 At the hearing, the hearing officer, defendant B. Velasquez, refused to allow camera 17 footage of the incident to be shown or allow the plaintiff to call witnesses. (Id.) Defendant 18 Velasquez also denied plaintiff’s request to obtain and present documentary evidence and refused 19 to consider the mental health assessment of the plaintiff. (Id.) Plaintiff asked defendant Sawma 20 for assistance but she refused by saying, “I am not your lawyer.” (Id. at 11.) 21 Plaintiff was found guilty of a rule violation and “given maximum punishments.” (Id.) 22 Plaintiff’s appeal of this decision was denied by defendant L. Eldridge. (Id.) The “Chief Appeals 23 office” found plaintiff’s inability to call available witnesses was a due process violation. (Id.) 24 The office also found they were “‘…unable to support the listed charge…’” and dismissed the 25 RVR, though the punishment was still completed. (Id.) 26 Plaintiff appealed this RVR which was eventually reviewed by defendant Eldridge. (ECF 27 No. 13.) Defendant Eldridge denied plaintiff’s grievance and “failed to act on the constitutional 28 claims…allowing continued punishment and loss of credits.” (Id.) 1 Plaintiff claims that he was denied equal protection as a “class of one”, that defendant 2 Heslop retaliated against him and used excessive force, and that his due process rights were 3 violated. Plaintiff also seeks to assert a number of state law claims and has pled compliance with 4 Government Claims Act. (Id. at 15.) 5 IV. Does Plaintiff State a Claim under § 1983? 6 As noted above, the factual allegations related to many of plaintiff’s claims remain 7 identical to those in plaintiff’s prior complaint. (See ECF Nos. 15, 20.) As such, the court’s 8 analysis remains largely the same for plaintiff’s claims that are similar between the two 9 complaints. 10 A. Excessive Force 11 Plaintiff alleges that defendant Heslop violated plaintiff’s Eighth Amendment rights 12 through the use of excessive force. 13 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 14 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 15 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 16 “[W]henever prison officials stand accused of using excessive physical force in violation of the 17 [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith 18 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 19 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 (1986)). 20 Under the facts plaintiff alleges, the use of force by defendant Heslop does not appear to 21 have been used in a good-faith effort to maintain or restore discipline. See generally Hudson, 503 22 at 6-7. Plaintiff claims that he was complying with orders from correctional officers. (ECF No. 23 20 at 3.) The complaint alleges that defendant Heslop’s use of force was in response to plaintiff 24 expressing his concerns to Officer Lene about his safety with defendant Heslop. (Id.) If true, this 25 use of force, which injured the plaintiff, would not be related to maintaining or restoring 26 discipline. 27 As such, plaintiff has alleged sufficient facts to raise a cognizable claim against defendant 28 Heslop for excessive force in violation of plaintiff’s Eighth Amendment rights. 1 B. Retaliation 2 Plaintiff claims that defendant Heslop retaliated against the plaintiff in violation of his 3 First Amendment rights. Plaintiff alleges that in retaliation for plaintiff “seeking redress” 4 defendant Heslop filed a false RVR against the plaintiff. (ECF No. 20 at 7.) 5 A viable First Amendment claim for retaliation must establish the following five 6 elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) 7 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 8 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 9 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 10 Plaintiff has alleged sufficient facts to state a First Amendment retaliation claim. 11 Plaintiff’s statement that he “sought redress” against defendant Heslop could have multiple 12 meanings. (ECF No. 20 at 7.) However, the court must construe plaintiff’s allegations in the 13 light most favorable to the plaintiff. Jenkins, 395 U.S. at 421. Viewed in the most favorable 14 contest, plaintiff’s claim appears to be that defendant Heslop retaliated for plaintiff filing an 15 inmate grievance. Inmates have a right to file a grievance against correctional officers. See 16 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 17 1269 (9th Cir. 2009)). Plaintiff has alleged that in response to plaintiff filing a grievance, 18 defendant Heslop filed an RVR containing “false statements and omissions.” (ECF No. 20 at 7.) 19 The filing of a false report against the plaintiff in retaliation for plaintiff filing a grievance 20 satisfies the elements required to state a claim for retaliation under the First Amendment. 21 As such, plaintiff has stated sufficient facts to state a claim against defendant Heslop for 22 retaliation in violation of the plaintiff’s First Amendment rights. 23 C. Due Process and Equal Protection 24 Plaintiff alleges that defendants Velasquez and Sawma violated his due process and equal 25 protection rights. Plaintiff specifies that he alleges his rights were violated in connection with his 26 disciplinary hearing. 27 //// 28 //// 1 1. Due Process 2 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 3 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 4 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (quotation 5 marks omitted). Where a disciplinary hearing is vacated due to procedural deficiencies upon 6 administrative appeal, there does not exist a due process violation. Aldridge v. Gomez, 41 7 F.App’x 995, 995 (9th Cir. 2002). 8 The complaint states that the plaintiff’s inability to call witnesses at his hearing was 9 determined to be a due process violation upon review by CDCR. (ECF No. 20 at 11.) Plaintiff 10 also states that the RVR was subsequently dismissed in its entirety. (Id.) A plaintiff cannot state 11 a procedural due process claim where disciplinary proceedings are rendered null and the plaintiff 12 is not subject to credit loss or further punishment. See Strohmeyer v. Belanger, 661 Fed. Appx. 13 471, 473, (9th Cir. 2016); See also Randolph v. Sandoval, 1:18-cv-00968-LJO-BAM (PC), 2020 14 WL 814136, at *6 (E.D. Cal. Feb. 19, 2020) (findings and recommendations adopted by 15 Randolph v. Sandoval, 1:18-cv-00968-LJO-BAM (PC), 2020 WL 2538379, at *2 (E.D. Cal. May 16 19, 2020)) (finding plaintiff could not state a claim based on a disciplinary violation as it was 17 later overturned and collecting cases where other courts have found the same); Molina v. Allison, 18 EDCV 20-00518-SVW (AS), 2022 WL 3013179, at *9 (C.D. Cal. June 8, 2022); Horne v. 19 Coughlin, 155 F.3d 26, 31, n.3 (2nd Cir. 1998); Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 20 1995). 21 Plaintiff has not alleged sufficient facts to state a claim for violation of his due process 22 rights. Given that the CDCR review process already identified and addressed the alleged due 23 process violation and there is no apparent loss of credits or further punishment, the facts alleged 24 do not show there is a life, liberty, or property interest at stake. Plaintiff has not alleged sufficient 25 facts to state a claim for violation of his procedural due process rights. 26 Accordingly, plaintiff’s claim that his due process rights were violated will be dismissed 27 with leave to amend. 28 //// 1 2. Equal Protection 2 The Equal Protection Clause requires that persons who are similarly situated be treated 3 alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Hartmann v. Calif. 4 Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 5 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). State prison 6 inmates retain a right to equal protection of the laws guaranteed by the Fourteenth Amendment. 7 Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Lee v. Washington, 390 U.S. 333, 8 334 (1968)). An equal protection claim may be established by showing that defendants 9 intentionally discriminated against plaintiff based on his membership in a protected class, 10 Hartmann, 707 F.3d at 1123, or that similarly situated individuals were intentionally treated 11 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Dept. 12 of Agriculture, 553 U.S. 591, 601-02 (2008). A “class of one” equal protection claim has three 13 elements: the defendants “(1) intentionally (2) treated [plaintiffs] differently than other similarly 14 situated [mine operators], (3) without a rational basis.” Gearhart v. Lake County Mont., 637 F.3d 15 1013, 1022 (9th Cir. 2011); See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) 16 Plaintiff claims that as a “class of one” his equal protection rights were violated as he was 17 treated differently from similarly situated inmates. (ECF No. 20 at 8.) Plaintiff specifically 18 asserts that he was denied the right to call witnesses, the assistance of a staff assistant, the ability 19 to present documentary evidence, the right to have mental health assessment considered, and the 20 opportunity to have camera footage presented during the hearing. (Id. at 12-13.) Plaintiff argues 21 that other similarly situated inmates received different treatment despite plaintiff’s objections and 22 includes citations to state regulations granting some of these as rights to inmates. (Id.) Plaintiff 23 asserts that there was no rational basis for the difference in treatment. (Id. at 13.) 24 These factual allegations appear to satisfy the elements of a class of one equal protection 25 claim. See Gearhart 637 F.3d at 1022. Plaintiff has alleged at least minimally sufficient facts to 26 state a class-of-one equal protection claim against defendants Velasquez and Sawma. 27 //// 28 //// 1 A. Supervisory Liability 2 The SAC contains only a few additional factual allegations regarding defendant Eldridge. 3 Plaintiff alleges that she was aware of the due process and equal protection claims because she 4 denied second level grievance submission despite it eventually being determined that plaintiff’s 5 due process rights were violated. (ECF No. 20.) 6 Supervisory personnel are generally not liable under § 1983 for the actions of their 7 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 8 supervisorial position, the causal link between him and the claimed constitutional violation must 9 be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. 10 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). A defendant who denies a plaintiff’s inmate appeal 11 is only liable if plaintiff demonstrates that defendant knew of an ongoing or impending 12 constitutional violation and failed to act. Ellis v. Foulk, 2:14-cv-00802-AC P, 2015 WL 13 4662766, at *5 (E.D. Cal. Aug. 5, 2015) (citing Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 14 2006)); Fratus v. California Dep’t of Corr., 1:12-cv-00906-LJO-SKO (P), 2014 WL 1338903, at 15 *3-4 (E.D. Cal. Apr. 2, 2014) (stating that denial of an appeal for a past violation of constitutional 16 rights during a disciplinary hearing does not subject defendants to liability for that previous 17 violation). 18 Plaintiff has only alleged that defendant Eldridge “reviewed and denied” his appeal of the 19 disciplinary hearing decision “without warranted action.” (ECF No. 20 at 13.) Based on the facts 20 in the complaint, this is the extent of defendant Eldridge’s involvement in plaintiff’s claims. 21 These facts are not sufficient to state a claim against defendant Eldridge for violating plaintiff’s 22 constitutional rights as they do not show that defendant knew of an ongoing or impending 23 violation. See Ellis, 2015 WL 4662766, at *5; See also Fratus, 2014 WL 1338903, at *3-4. 24 Additionally, plaintiff’s claim is that defendant Eldridge’s actions violated his due process rights 25 by denying plaintiff’s inmate appeal. However, as noted above, plaintiff cannot state a due 26 process claim on these grounds where the results of plaintiff’s disciplinary hearing were later 27 rendered null and the plaintiff is not subject to credit loss or further punishment. See Strohmeyer 28 v. Belanger, 661 Fed. Appx. 471, 473, (9th Cir. 2016) 1 Accordingly, plaintiff’s due process supervisor liability claim against defendant Eldridge 2 will be dismissed with leave to amend. 3 V. California State Law Claims 4 Plaintiff also alleges defendants committed violations of the California civil code. (ECF 5 No. 20 at 15-18.) Plaintiff claims that he has complied with the California Government Claims 6 Act. (Id. at 15.) A review of plaintiff’s complaint shows allegations related to two apparent 7 claims: (1) assault and battery by defendant Heslop, and (2) interference with plaintiff’s rights (a 8 Bane Act claim).1 9 A. Assault and Battery 10 Under California state law, assault is defined as “[a]n unlawful attempt, coupled with a 11 present ability, to commit a violent injury on the person of another.” Cal. Penal Code § 240. A 12 battery occurs when there is “unwanted intentional touching of any kind.” Conte v. Girard 13 Orthopaedic Surgeons Med. Grp., Inc., 107 Cal.App.4th 1260, 1266 (2003). 14 Plaintiff has alleged at least minimally sufficient facts to state a claim for assault under 15 California state law. Under the allegations in the SAC, defendant Heslop attempted to force, not 16 connected with a penological interest, to cause harm to the plaintiff and intentionally had 17 unwanted contact with plaintiff. These facts are sufficient, for the purposes of screening, to state 18 California state law assault and battery claims. 19 B. Bane Act 20 “The Bane Act authorizes individual civil actions for damages and injunctive relief by 21 individuals whose federal or state rights have been interfered with by threats, intimidation, or 22 coercion.” Brown v. County of Mariposa, 1:18-cv-01541-LJO-SAB, 2019 WL 1993990, at *12 23 (E.D. Cal. 2019) (citations omitted) (citing Cal. Civ. Code § 52.1(a) and Jones v. Kmart Corp., 17 24 Cal. 4th 329, 338 (1998)); see Reese v. County of Sacramento, 888 F.3d 1030, 1040-41 (9th Cir. 25 2018). “To state a claim under the Bane Act, a plaintiff must allege ‘(1) interference with or 26 1 The court notes that the SAC contains a number of other references to state law. (See ECF No. 27 20 at 15.) However, as far as can be discerned, these are the only stand-alone state law claims. If plaintiff intended to bring additional claims under California law, he may elect to file an amended 28 complaint. 1 attempted interference with a state or federal constitutional or legal right, and (2) the interference 2 or attempted interference was by threats, intimidation, or coercion.’” Guillen v. Carrillo, 2022 3 WL 902883, at *8 (E.D. Cal. Mar. 28, 2022) (citation omitted) (quoting Lull v. Cty. of 4 Sacramento, No. 2:17-CV-1211-TLN-EFB(PS), 2019 WL 1014592, at *7 (E.D. Cal. Mar. 4, 5 2019)). 6 Above, the court found that plaintiff had alleged sufficient facts to state a First 7 Amendment retaliation claim. Facts which support a First Amendment retaliation claim on 8 screening are sufficient to support a Bane Act claim. See Guillen v. Carrillo, 2022 WL 902883, 9 at *8 (E.D. Cal. Mar. 28, 2022) (“The same facts supporting Plaintiff's First Amendment 10 retaliation claim support a Bane Act claim.”); see also McMillan v. Ringler, No. 2:1-cv-0578- 11 MCE-KJN(P), 2018 WL 497374, at *18 (E.D. Cal. Jan. 22, 2018), findings and recommendations 12 adopted, 2018 WL 888469 (E.D. Cal. Feb. 14, 2018). Accordingly, plaintiff has alleged at least 13 minimally sufficient facts to state a Bane Act claim on screening. 14 AMENDING THE COMPLAINT 15 This court finds above that plaintiff’s complaint states cognizable claims against 16 defendant Heslop for using excessive force in violation of plaintiff’s Eighth Amendment rights 17 and retaliation in violation of his First Amendment rights. It is also found that plaintiff has stated 18 a cognizable equal protection claim against defendant Velasquez. Finally, plaintiff will also be 19 permitted to proceed on his cognizable assault, battery, and Bane Act state law claims. However, 20 the plaintiff’s complaint fails to state any other cognizable claim. 21 Plaintiff will be given the option to proceed on his cognizable claims or to file an 22 amended complaint to state additional claims against defendant Heslop or any other defendant. 23 Any amended complaint must be complete in itself. The court cannot refer to a prior complaint to 24 understand the plaintiff’s claims. 25 If plaintiff chooses to file an amended complaint, he must address the problems with his 26 complaint that are explained above. In an amended complaint plaintiff must clearly identify each 27 defendant and the action that defendant took that violated his constitutional rights. The court is 28 not required to review exhibits to determine what plaintiff’s charging allegations are as to each 1 named defendant. If plaintiff wishes to add a claim, he must include it in the body of the 2 complaint. The charging allegations must be set forth in the amended complaint, so defendants 3 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 4 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 5 each claim. See Fed. R. Civ. P. 8(a). 6 Any amended complaint must show the federal court has jurisdiction, the action is brought 7 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 8 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 9 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 10 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 11 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 12 perform an act he is legally required to do that causes the alleged deprivation). “Vague 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 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 16 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 17 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 18 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 19 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 20 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 21 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 22 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 23 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 24 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 25 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 26 An amended complaint must be complete in itself, without reference to any prior pleading. 27 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 28 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 1 | evidentiary support for his allegations, and for violation of this rule, the court may impose 2 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 3 CONCLUSION 4 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as 5 | follows: 6 1. Plaintiff's Second Amended Complaint states cognizable claims against defendant S. 7 Heslop for excessive force in violation of plaintiff's Eighth Amendment rights and 8 retaliation in violation of his First Amendment rights. It also states a cognizable 9 Fourteenth Amendment equal protection claim against defendants B. Velasquez and A. 10 Sawma. Finally, the Second Amended Complaint states sufficient facts to bring 11 California state law claims for assault, battery, and violation of the Bane Act. 12 2. The Second Amended Complaint does not contain any other cognizable claims or 13 defendants. 14 3. Plaintiff may choose to proceed on his cognizable claims set out above or he may choose 15 to amend his complaint. 16 4. 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 5. Plaintiff is warned that his failure to comply with this order will result in a 19 recommendation that this action be dismissed. 20 | Dated: April 7, 2023 22 3 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 DB:14 27 || DB/DB Prisoner Inbox/Civil Rights/S/wilk1622.scrn(3) 28 14 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 KEENAN WILKINS, No. 2:20-cv-01622 KJM DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE OF ELLECTION 12 S.HESLOP, et al., 13 Defendants. 14 15 Check one: 16 17 _____ Plaintiff wants to proceed immediately on his Eighth Amendment excessive force claim 18 and First Amendment retaliation claim against CDCR Correctional Officer S. Heslop, his 19 Fourteenth Amendment equal protection claim against CDCR Correctional Lieutenant B. 20 Velasquez and CDCR Correctional Officer A. Sawma, and his assault, battery, and Bane 21 Act state law claims. Plaintiff understands that by going forward without amending the 22 complaint he is voluntarily dismissing all other claims and defendants. 23 24 ____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 Keenan Wilkins Plaintiff pro se 28