(PC) Garcia v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LUCIEN GARCIA, No. 2:22-cv-01051-KJM-CKD 12 Plaintiff, 13 v. ORDER 14 KATHLEEN ALLISON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request 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 separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Standard 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 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 24 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate at 28 California State Prison-Sacramento (“CSP-Sac”). Named as defendants in this action are 1 Kathleen Allison, the Secretary of the California Department of Corrections and Rehabilitation; 2 Jeff Lynch, the Warden of CSP-Sac; and four correctional officers employed at CSP-Sac. 3 In his first claim for relief, plaintiff alleges that on or around July 2021, defendant Kurgan 4 threatened his safety by not making sure that wet floor signs were displayed after the porters 5 mopped the floor. As a result, plaintiff slipped on the floor and broke his right ankle. 6 Plaintiff describes how, two weeks later, defendants Kurgan and Olmos dragged him 7 across the dayroom floor and pushed him off of a small flight of stairs resulting in injury, in 8 violation of the Eighth Amendment. In a separate cause of action for excessive force in violation 9 of the Eighth Amendment, plaintiff alleges that defendant Kurgan punched him on the right side 10 of the head during this same altercation on August 6, 2021. 11 Plaintiff further alleges that defendant Kurgan made a false report against him in 12 retaliation for the filing of a staff complaint of excessive force against him. 13 By way of relief, plaintiff seeks monetary compensation for his pain and suffering, a 14 declaratory judgment, and injunctive relief against defendants. 15 III. Legal Standards 16 The following legal standards are being provided to plaintiff based on his pro se status as 17 well as the nature of the allegations in his complaint. 18 A. Linkage 19 The civil rights statute requires that there be an actual connection or link between the 20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 24 in another's affirmative acts or omits to perform an act which he is legally required to do that 25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 27 link each named defendant with some affirmative act or omission that demonstrates a violation of 28 plaintiff's federal rights. 1 B. Supervisory Liability 2 Government officials may not be held liable for the unconstitutional conduct of their 3 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 4 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 5 each Government official, his or her title notwithstanding is only liable for his or her own 6 misconduct.”). When the named defendant holds a supervisory position, the causal link between 7 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 8 plaintiff must allege some facts indicating that the defendant either personally participated in or 9 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 10 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 11 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 12 C. False Rules Violation Report (“RVR”) 13 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly 14 accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 15 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the 16 disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 17 1983. See Hanrahan v. Lane, 747 F.2d 1137, 1140– 41 (7th Cir. 1984). An exception exists 18 when the fabrication of charges infringed on the inmate's substantive constitutional rights, such as 19 when false charges are made in retaliation for an inmate's exercise of a constitutionally protected 20 right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation 21 for a grievance filed by an inmate is actionable under section 1983). 22 D. Retaliation 23 “Within the prison context, a viable claim of First Amendment retaliation entails five 24 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 25 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 28 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 1 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See 2 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and 3 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 4 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison 5 transfer and double-cell status can constitute a cause of action for retaliation under the First 6 Amendment). 7 E. Deliberate Indifference to Safety 8 The Eighth Amendment's prohibition on cruel and unusual punishment imposes on prison 9 officials, among other things, a duty to “take reasonable measures to guarantee the safety of the 10 inmates .” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S. 11 517, 526–27 (1984)). An inmate's Eighth Amendment rights are violated by a prison official if 12 that official exposes an inmate to a “substantial risk of serious harm,” while displaying 13 “deliberate indifference” to that risk. Id. at 834. In the context of failure to protect an inmate 14 from a known threat to safety, deliberate indifference does not require an express intent to punish. 15 Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). Further, the standard does not require that 16 the official believe “to a moral certainty” physical harm will result. Id. But, there must be more 17 than “mere suspicion” of harm. Id. 18 IV. Analysis 19 After conducting the required screening, the court finds that plaintiff sufficiently alleges 20 an Eighth Amendment excessive force claim against defendants Kurgan and Olmos. Plaintiff 21 fails to state a claim for relief against defendants Allison, Lynch, Abarca, or Caruso because he 22 does not link them to any of the alleged constitutional violations. See Fayle v. Stapley, 607 F.2d 23 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 24 589 F.2d 438, 441 (9th Cir. 1978). To the extent that plaintiff alleges a retaliation claim against 25 defendant Kurgan for filing a false charge against him, plaintiff does not contend that this resulted 26 in a chilling of his First Amendment rights. Absent such an allegation, plaintiff has not 27 adequately alleged a First Amendment retaliation claim against defendant Kurgan. See Rhodes v. 28 Robinson, 408 F.3d 559 567-68 (9th Cir. 2005). Plaintiff's allegations concerning his slip and fall 1 do not amount to deliberate indifference under the Eighth Amendment. Plaintiff does not allege 2 that any named defendant had reason to believe that the dayroom floor posed a substantial risk of 3 serious harm, especially since plaintiff fell “while trying to climb the lower stair case,” and did 4 not slip on the floor itself. See ECF No. 1 at 9. Based on these deficiencies with the remaining 5 claims, plaintiff may choose to proceed on the Eighth Amendment excessive force claims found 6 cognizable against defendants Kurgan and Olmos, or he may attempt to cure these defects by 7 filing a first amended complaint. 8 Plaintiff may elect to amend his complaint to attempt to cure the deficiencies identified in 9 this screening order. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 10 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 11 their complaints). If plaintiff chooses to proceed on the Eighth Amendment excessive force 12 claims against defendants Kurgan and Olmos found cognizable in this screening order, the court 13 will construe this as a request to voluntarily dismiss the additional claims and defendants pursuant 14 to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. 15 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 16 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 17 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 18 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 19 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 20 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 21 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 22 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 24 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 25 complaint be complete in itself without reference to any prior pleading. This is because, as a 26 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 27 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 28 longer serves any function in the case. Therefore, in an amended complaint, as in an original 1 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 2 V. Plain Language Summary for Pro Se Party 3 The following information is meant to explain this order in plain English and is not 4 intended as legal advice. 5 Some of the allegations in the complaint state claims for relief against the defendants, and 6 some do not. You must decide if you want to (1) proceed immediately on the Eighth Amendment 7 claims against defendants Kurgan and Olmos; or, 2) amend the complaint to fix the problems 8 identified in this order with respect to the remaining claims and defendants. Once you decide, 9 you must complete the attached Notice of Election form by checking only one box and 10 returning it to the court. 11 Once the court receives the Notice of Election, it will issue an order telling you what you 12 need to do next. If you do not return this Notice, the court will order service of the complaint 13 only on the claims found cognizable in this screening order and will recommend dismissing the 14 remaining claims and defendants. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 18 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 19 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to 20 the California Department of Corrections and Rehabilitation filed concurrently herewith. 21 3. Plaintiff has the option to proceed immediately on the Eighth Amendment claims 22 against defendants Colvin, Brooks, and Stewart. In the alternative, plaintiff may choose to 23 amend the complaint to fix the deficiencies identified in this order with respect to the 24 remaining claims and defendants. 25 4. Within 21 days from the date of this order, plaintiff shall complete and return the 26 attached Notice of Election form notifying the court whether he wants to proceed on the 27 screened complaint or whether he wants time to file a first amended complaint. 28 5. If plaintiff fails to return the attached Notice of Election within the time provided, the ] court will construe this failure as consent to dismiss the deficient claims and proceed only 2 on the cognizable claims identified above. 3 || Dated: November 22, 2022 Card Kt | La Ly / g— 4 CAROLYN K.DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 || 12/gare1051.option.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL LUCIEN GARCIA, No. 2:22-cv-01051-KJM-CKD 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 KATHLEEN ALLISON, et al., 14 Defendants. 15 16 Check only one option: 17 _____ Plaintiff wants to proceed immediately on the Eighth Amendment excessive force claims 18 against defendants Kurgan and Olmos. Plaintiff voluntarily dismisses the remaining claims and 19 defendants; or 20 _____ Plaintiff wants time to file a first amended complaint. 21 DATED: 22 23 24 ____________________ Plaintiff 25 26 27 28