(PC) Hunt v. Diaz

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA MARK HUNT, ) Case No.: 1:19-cv-00504-DAD-SAB (PC) ) 12 Plaintiff, ) ) 13 v. ) SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT D. DIAZ, et al., ) OR NOTIFY THE COURT OF INTENT TO ) PROCEED ON CLAIM FOUND TO BE 15 Defendants. ) COGNIZABLE ) 16 ) [ECF No. 17] ) 17 ) 18 Plaintiff Mark Hunt is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

20 Currently before the Court is Plaintiff’s complaint, filed August 5, 2019.

21 I.

22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

1 A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

7 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

15 II.

16 COMPLAINT ALLEGATIONS 17 The Court accepts Plaintiff’s allegations in the complaint and first amended complaint as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.

19 Plaintiff names D. Diaz, A. Velasquez, J. Brainard, G. Solorio, and K. Reyes, as Defendants.

20 Plaintiff was beaten up by correctional officers at the 5:00 pill line to take his court ordered medication.

22 When Plaintiff came out, officers D. Diaz and A. Velasquez, at the order of sergeant Brainard, attacked Plaintiff in the pill line because he is Black and has numerous “IEX”1 on his jacket.

24 Defendants beat him with his fists and batons for approximately eight minutes, saying racial slurs because they looked into his central file and discovered he is “IEX” status. Plaintiff was trying to get away and push them off. Plaintiff suffered bruises and cuts to his face which required four sutures.

28 1 1 Plaintiff requests that the criminal charges be dropped and to be fully reimbursed for all the damage to his personal property, as well as compensatory damages.

3 III.

4 DISCUSSION 5 A. Excessive Force 6 The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted).

13 For claims of excessive physical force, the issue is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] the need for application of force, the relationship between that need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)). The objective component of an Eighth Amendment claim is contextual and responsive to contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident, Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).

25 Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (citation and internal quotation marks omitted); Ashcroft v. Iqbal, 556 U.S. at 676. “A supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is ‘a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’”

2 Crowley, 734 F.3d at 977 (citation and internal quotation marks omitted). “Under the latter theory, supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a constitutional violation.” Id. 6 Liberally construed, Plaintiff’s alleges that Defendants D. Diaz and A. Velasquez used excessive force at the direction of sergeant J. Brainard is sufficient to state cognizable claim for relief against these individuals. However, Plaintiff has not linked Defendant G. Solorio or K. Reyes to any affirmative action or inaction giving rise to the alleged constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976)(section 1983 plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff.) Accordingly, Plaintiff does not state a cognizable claim against Defendants G. Solorio or K. Reyes.

14 B. Criminal Charges 15 Any award of equitable relief in this action is governed by the Prison Litigation Reform Act (“PLRA”), which provides in relevant part, “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). Thus, the federal court’s jurisdiction is limited in nature and its power to issue equitable orders may not go beyond what is necessary to correct the underlying constitutional violations which form the actual case or controversy. 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998); City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010).

27 /// /// 1 The Court does not have jurisdiction to order that any criminal charges be dropped.

2 Accordingly, this request for relief is subject to dismissal. In addition, Plaintiff fails to demonstrate how reimbursement of any alleged damage to his personal property is narrowly tailored to any violation of Plaintiff’s federal rights by the use of excessive force and is therefore prohibited by the PLRA.

6 IV.

7 CONCLUSION AND ORDER For the reasons discussed, the Court finds that Plaintiff has stated a cognizable claim against Defendants D. Diaz, A. Velasquez, and J. Brainard for excessive force. The Court will grant Plaintiff an opportunity to cure the identified deficiencies which Plaintiff believes in good faith, are curable.

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). If Plaintiff chooses to amend his complaint, he may not change the nature of this suit by adding new, unrelated claims in his second amended complaint.

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

If Plaintiff does not wish to file an amended complaint and he is agreeable to proceeding only on the cognizable claim identified by the Court, he may file a notice informing the Court that he does not intend to amend and he is willing to proceed only on his claims against Defendants D. Diaz, A.

Velasquez, and J. Brainard. The Court will then recommend to a district judge that this case only proceed on those claims for the reasons discussed above.

If Plaintiff chooses to file an amended complaint, that complaint should be brief, Fed. R. Civ. P. 8(a), but it must also state what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-89. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 23 (citations admitted).

An amended complaint supersedes all prior complaints. Lacey v. Maricopa County, 693 F.3d 25 896, 927 (9th Cir. 2012). Absent prior court approval, the amended pleading must be complete in itself without reference to any prior pleading. Local Rule 220. Finally, any amended complaint is limited to pages in length. An amended complaint which exceeds this limit will be stricken. | Based on the foregoing, it is HEREBY ORDERED that: 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file either: ‘ a. an amended complaint, limited to 25 pages in length, or ° b. a notice of his intent to proceed upon the cognizable claims identified in th 6 order; and ’ 3. Plaintiff is warned that if he fails to comply with this order, the Court will recommend the district judge that this action be dismissed for the failure to prosecute and the failu: ° to comply with a court order.

11 TT IS SO ORDERED.

12 OF eg. ee Dated: _ August 28, 2019 13 UNITED STATES MAGISTRATE JUDGE