(PC) Hicks v. Russell ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DARYL ANTHONY HICKS, Case No. 2:22-cv-00095-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 RUSSELL, et al., ECF No. 2 14 Defendants. SCREENING ORDER THAT PLAINTIFF: 15 (1) PROCEED ONLY WITH HIS FIRST AND EIGHTH AMENDMENT 16 CLAIMS AGAINST DEFENDANT RUSSELL; OR 17 (2) DELAY SERVING ANY 18 DEFENDANT AND FILE AN AMENDED COMPLAINT 19 ECF No. 1 20 THIRTY-DAY DEADLINE 21 22 23 24 Plaintiff, a state prisoner, alleges that the defendant correctional officers violated his rights 25 by failing to protect him from being harmed by other inmates, retaliating against him for calling 26 the Prison Rape Elimination Act (“PREA”) hotline, and using excessive force against him. I have 27 screened the complaint and determined that it states viable First and Eighth Amendment claims 28 against defendant Russell. No other claim is sufficiently plead, however. Plaintiff must choose 1 whether to proceed with his cognizable claims or to delay service and file an amended complaint. 2 I will also grant his application to proceed in forma pauperis. 3 Screening Order 4 I. Screening and Pleading Requirements 5 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 6 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 7 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 8 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 9 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 10 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 11 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 12 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 13 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 14 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 15 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 16 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 17 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 18 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 19 n.2 (9th Cir. 2006) (en banc) (citations omitted). 20 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 21 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 22 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 23 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 24 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 25 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 26 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 27 28 1 II. Analysis 2 Plaintiff alleges that, on July 1, 2021, he filed a prison grievance concerning the failure of 3 two officers, Gosai and Russell,1 to protect him from an attack by other inmates.2 ECF No. 1 at 3. 4 Defendants Vina and Sass allegedly dismissed the concerns raised in his grievance and told him 5 that “we don’t believe inmates.” Id. Plaintiff goes on to allege that other inmates continued to 6 threaten him but does not claim that they actually harmed him. Id. 7 Plaintiff does raise cognizable First and Eighth Amendment claims against defendant 8 Russell. He alleges that, after his meeting with Vina and Sass, defendant Russell was assigned to 9 escort him to a different building. Id. Plaintiff expressed his safety concerns to Russell, and the 10 officer responded by handcuffing him and shoving him toward his destination. Id. Plaintiff 11 walked a short distance before Russell tripped him, jumped on his back, and twisted his fingers. 12 Id. Plaintiff lost consciousness during the attack and, upon awakening, heard Russell tell Vina 13 and Sass that his attack was motivated by plaintiff’s decision to call the PREA hotline. Id. These 14 allegations, while sufficient to sustain causes of action against Russell, do not implicate Vina and 15 Sass in any violation of plaintiff’s constitutional rights. Plaintiff does not, for instance, allege that 16 either of these defendants knew or approved of Russell’s retaliatory assault. 17 Plaintiff may proceed only with his claims against Russell or he may delay serving anyone 18 and file an amended complaint. If he chooses to proceed against Russell, he should voluntarily 19 dismiss his claims against the other defendants. Alternatively, if plaintiff decides to file an 20 amended complaint, the amended complaint will supersede the current complaint. See Lacey v. 21 Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended 22 complaint will need to be complete on its face without reference to the prior pleading. See E.D. 23 Cal. Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves 24 any function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need 25 to assert each claim and allege each defendant’s involvement in sufficient detail. The amended 26 27 1 I cannot tell whether the Russell implicated in this failure to protect is the same officer named in this action. 28 2 That failure to protect does not appear to be part of this lawsuit. 1 | complaint should be titled “Amended Complaint” and refer to the appropriate case number. 2 Accordingly, it is ORDERED that: 3 1. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is GRANTED. 4 2. Within thirty days from the service of this order, plaintiff must either state his intent to 5 | proceed only against Russell or file an amended complaint. If he chooses to proceed against 6 | Russell, he should voluntarily dismiss his claims against the other defendants. 7 3. Failure to comply with this order may result in the dismissal of this action. 8 4. The Clerk of Court is directed to send plaintiff a complaint form. 9 10 IT IS SO ORDERED. ll ( ie — Dated: _ June 30, 2022 Q_—— 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28