(PC) Tongi v. Roswell

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KAI TONGI, No. 2:23-cv-00075-CKD P 12 Plaintiff, 13 v. ORDER J. ROSWELL, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff’s motion to proceed in forma pauperis will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

3 I. Screening Requirement 4 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 upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

16 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 19 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

25 II. Allegations in the Complaint 26 At all times relevant to the allegations in the complaint, plaintiff was an inmate at California State Prison-Sacramento (“CSP-Sac”). He sues four correctional officers at CSP-Sac for claims of excessive force and writing false reports. Plaintiff alleges that defendant Ortega admitted to assaulting him and that another inmate witnessed the assault. ECF No. 1 at 3.

2 Plaintiff attaches a single page of a Rules Violation Report (“RVR”) apparently written by defendant Ortega that describes an incident on October 5, 2021 in which plaintiff disregarded an order to submit to handcuffs. ECF No. 1 at 6. The RVR describes how plaintiff punched defendant Ortega in the face and how Ortega responded by punching plaintiff on the left side of his face. ECF No. 1 at 6. The other three defendants then forced plaintiff to the ground where he was ultimately handcuffed behind his back. Id. In the course of trying to handcuff plaintiff, defendant Ortega struck plaintiff two additional times: once on the back and once on the right side of his face. Id. The RVR indicates that plaintiff was resisting being placed in handcuffs. Id. In his second claim for relief, plaintiff indicates that the RVR is false because defendant Ortega struck him on the right side of his face where he sustained an orbital fracture. Id. at 4, 7.

12 III. Legal Standards 13 The following legal standards are provided based on plaintiff’s pro se status as well as the nature of the allegations in the complaint.

15 A. Linkage 16 The civil rights statute 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. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 19 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights.

26 B. Excessive Force 27 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual punishment on inmates which has been defined as “the unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is… whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 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. Hudson, 503 U.S. at 7 (1992) (quotation marks and citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause harm always violates contemporary standards of decency in violation of the Eighth Amendment. Whitley, 475 U.S. at 327.

13 C. False Reports 14 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 16 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 1983. See Hanrahan v. Lane, 747 F.2d 1137, 1140– 41 (7th Cir. 1984). An exception exists when the fabrication of charges infringed on the inmate's substantive constitutional rights, such as when false charges are made in retaliation for an inmate's exercise of a constitutionally protected right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation for a grievance filed by an inmate is actionable under section 1983).

23 IV. Analysis 24 Regarding the excessive force claim, plaintiff does not indicate that any of defendants’ actions on October 5, 2021 were done maliciously and sadistically for the very purpose of causing him harm. See Hudson v. McMillan, 503 U.S. 1, 7 (1992). Rather, the RVR indicates that the defendants’ conduct was done in an effort to maintain or restore discipline because plaintiff was disregarding direct orders. Therefore, the complaint does not allege an Eighth Amendment excessive force claim against any defendant. Plaintiff does not allege a cognizable claim against defendant Ortega who allegedly wrote a false report because there is no allegation that it was written in retaliation for plaintiff’s grievances or other protected conduct. Accordingly, plaintiff fails to state a cognizable claim based on the issuance of a false report. For all these reasons, the complaint must be dismissed for failing to state a claim upon which relief may be granted. The court will, however, grant leave to file an amended complaint.

7 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

12 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

16 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 20 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

23 V. Plain Language Summary for Pro Se Party 24 The following information is meant to explain this order in plain English and is not intended as legal advice.

26 The court has reviewed the allegations in your complaint and determined that they do not state any claim against the defendants. Your complaint is being dismissed, but you are being given the chance to fix the problems identified in this screening order. ] Although you are not required to do so, you may file an amended complaint within 30 || days from the date of this order. If you choose to file an amended complaint, pay particular || attention to the legal standards identified in this order which may apply to your claims.

4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiffs motion 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. Plaintiff || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the || Director of the California Department of Corrections and Rehabilitation filed concurrently | herewith.

11 3. Plaintiff's complaint is dismissed.

12 4. Plaintiff □□ granted thirty days from the date of service of this order to file an amended || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil || Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number || assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and || two copies of the amended complaint; failure to file an amended complaint in accordance with || this order will result in a recommendation that this action be dismissed.

18 | Dated: June 2, 2023 / hice ANKE) flo ” CAROLYNK.DELANEY 20 UNITED STATES MAGISTRATE JUDGE 26 12/tong0075.14.new