(PC) Green v. Kersh ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JARVON D. GREEN, Case No. 2:22-cv-01053-TLN-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 R. KERSH, et al., SCREENING ORDER THAT PLAINTIFF: 14 Defendants. (1) PROCEED ONLY WITH HIS EXCESSIVE FORCE CLAIM 15 AGAINST DEFENDANT KERSH AND HIS DUE PROCESS CLAIMS 16 AGAINST DEFENDANT ALKIRE; OR 17 (2) DELAY SERVING ANY DEFENDANT AND FILE AN 18 AMENDED COMPLAINT 19 ECF Nos. 1 & 2 20 THIRTY-DAY DEADLINE 21 22 23 Plaintiff, a state prisoner proceeding without counsel, alleges that defendant Kersh 24 violated his rights by subjecting him to excessive force. ECF No. 1 at 3-5. Defendant Alkire then 25 allegedly covered up Kersh’s use of force by denying plaintiff his due process rights during the 26 subsequent disciplinary hearing related to the use of force. Id. at 4. Finally, plaintiff alleges that 27 supervisory defendants Gibson and Kibler bear responsibility for Kersh’s excessive force because 28 1 they should have been aware of it “via the chain of command.” Id. Plaintiff’s allegations against 2 Kersh and Alkire are suitable to proceed past screening. He has failed to state a viable claim 3 against Gibson and Kibler, however. He must decide whether to proceed only with his claims 4 against defendants Kersh and Alkire or to delay serving any defendant and file an amended 5 complaint. 6 I will grant plaintiff’s application to proceed in forma pauperis. ECF No. 2. 7 Screening Order 8 I. Screening and Pleading Requirements 9 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 10 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 11 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 12 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 13 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 14 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 15 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 16 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 17 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 19 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 20 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 21 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 22 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 23 n.2 (9th Cir. 2006) (en banc) (citations omitted). 24 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 25 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 26 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 27 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 28 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 1 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 2 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 3 II. Analysis 4 Plaintiff alleges that, on May 6, 2022, defendant Kersh violated his Eighth Amendment 5 rights by breaking his wrist and pushing him to the ground while applying handcuffs. ECF No. 1 6 at 3-4. Defendant Alkire, who presided over the disciplinary hearing related to Kersh’s use of 7 force, allegedly used his position to violate plaintiff’s due process rights and cover up the 8 excessive force incident. Id. at 4. These allegations are suitable to proceed past screening. 9 Plaintiff’s allegations against Gibson and Kibler, by contrast, are not cognizable. There is 10 no respondeat superior liability under section 1983. See Jones v. Williams, 297 F.3d 930, 934 11 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 12 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 13 no respondeat superior liability under section 1983.”). Here, plaintiff has not alleged any 14 personal participation by either Gibson or Kibler in the violation of his rights. 15 Plaintiff may either proceed only with his excessive force claim against defendant Kersh 16 and his due process claims against defendant Alkire, or he may delay serving any defendant and 17 file an amended complaint. If plaintiff decides to file an amended complaint, the amended 18 complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 19 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to be 20 complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once 21 an amended complaint is filed, the current complaint no longer serves any function. Therefore, in 22 an amended complaint, as in an original complaint, plaintiff will need to assert each claim and 23 allege each defendant’s involvement in sufficient detail. The amended complaint should be titled 24 “Amended Complaint” and refer to the appropriate case number. 25 Accordingly, it is ORDERED that: 26 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED. 27 2. Within thirty days from the service of this order, plaintiff either advise that he wishes 28 to proceed only with his excessive force claim against defendant Kersh and his due process 1 | claims against defendant Alkire or file an amended complaint. If he elects to proceed against 2 | Kersh and Alkire, he must voluntarily dismiss his claims against the other defendants. 3 3. Failure to comply with this order may result in the dismissal of this action. 4 4. The Clerk of Court is directed to send plaintiff a complaint form. 5 6 IT IS SO ORDERED. 7 ( — Dated: _ August 4, 2022 Q_——_. 8 awe D. PE i ERSON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28