(PC) Hunter v. Brenneman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON EUGENE HUNTER, No. 2:22-cv-1141 CKD P 12 Plaintiff, 13 v. ORDER 14 BRENNEMAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil action. This proceeding was 18 referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and plaintiff has 19 consented to have all matters in this action before a United States Magistrate Judge. See 28 20 U.S.C. § 636(c). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 ///// 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 Having conducted the required screening, the court finds that plaintiff may proceed on a 9 claim arising under the Fourteenth Amendment against defendant Brenneman for excessive use of 10 force. With respect to all other claims and defendants, plaintiff’s claims are not actionable. 11 At this point, plaintiff has two options: 1) proceed on the claim identified above; or 2) 12 attempt to cure the deficiencies in plaintiff’s complaint in an amended complaint. In considering 13 whether to amend, the court advises plaintiff as follows: 14 1. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 15 or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 16 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in civil 17 rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 18 2. In general, plaintiff’s allegations should not be vague or conclusory. Plaintiff must 19 point to specific acts in order to establish an actionable claim. 20 3. The Due Process Clause of the Fourteenth Amendment does not provide plaintiff with 21 any protection as to jail officials simply entering his cell. 22 4. In order to state a claim arising under the First Amendment for retaliation, plaintiff 23 must point to facts indicating a causal connection between adverse action and protected conduct. 24 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 25 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This is because, as a 28 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 1 |} F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 2 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 7 || shall be collected and paid in accordance with this court’s order to the Sacramento County Sheriff 8 | filed concurrently herewith. 9 3. Plaintiff is granted 21 days within which to complete and return the attached form 10 || notifying the court whether he wants to proceed on a claim arising under the Fourteenth 11 || Amendment against defendant Brenneman for excessive use of force or whether he wishes to file 12 || an amended complaint in an attempt to cure the deficiencies in his original complaint. If plaintiff 13 || does not return the form, this action will proceed on the claim described above. 14 | Dated: July 26, 2022 / a □□ / a Ly a 1s CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 | 1 30 hunt! 141.op 21 22 23 24 25 26 27 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 BRANDON EUGENE HUNTER, No. 2:22-cv-1141 CKD P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE OF 12 BRENNEMAN, et al., HOW TO PROCEED 13 Defendants. 14 15 Check one: 16 _____ Plaintiff wants to proceed immediately on a claim arising under the Fourteenth 17 Amendment against defendant Brenneman for excessive use of force; or 18 _____ Plaintiff wants time to file an amended complaint. 19 DATED: 20 21 22 23 24 Plaintiff’s Signature 25 26 27 28