1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIEM MAKIAH MOSELY, No. 2:25-cv-02951 SCR P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is incarcerated in state prison and proceeding pro se with a civil rights action 18 under

without a lawyer. Plaintiff’s complaint is before the undersigned for 19 screening under 28 U.S.C. § 1915A. For the reasons explained below, plaintiff’s complaint does 20 not comply with Rule 8(a) of the Federal Rules of Civil Procedure and will not be served. 21 Plaintiff will be given leave to file an amended complaint. 22 IN FORMA PAUPERIS 23 Plaintiff has requested leave to proceed without paying the full filing fee for this action, 24 under

. (ECF No. 2.) Plaintiff has submitted a declaration showing that he 25 cannot afford to pay the entire filing fee. See

(a)(2). Accordingly, plaintiff’s 26 motion to proceed in forma pauperis is granted. This means that plaintiff is allowed to pay the 27 $350.00 filing fee in monthly installments that are taken from the inmate’s trust account rather 28 than in one lump sum.

(a). As part of this order, the prison is required to 1 remove an initial partial filing fee from plaintiff’s trust account. See

(b)(1). A 2 separate order directed to CDCR requires monthly payments of twenty percent of the prior 3 month’s income to be taken from plaintiff’s trust account. These payments will be taken until the 4 $350 filing fee is paid in full. See

(b)(2). 5 STATUTORY SCREENING 6 The court is required to screen complaints brought by prisoners seeking relief against “a 7 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In 8 performing this screening function, the court must dismiss any claim that “(1) is frivolous, 9 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief 10 from a defendant who is immune from such relief.” Id. § 1915A(b). A claim is legally frivolous 11 when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,

, 325 12 (1989). The court may dismiss a claim as frivolous if it is based on an indisputably meritless 13 legal theory or factual contentions that are baseless. Neitzke,

. The critical 14 inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and 15 factual basis. See Jackson v. Arizona,

(9th Cir. 1989). 16 In order to avoid dismissal for failure to state a claim a complaint must contain more than 17 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 18 of action.” Bell Atlantic Corp. v. Twombly,

(2007). In other words, 19 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements do not suffice.” Ashcroft v. Iqbal,

(2009). A claim upon which the 21 court can grant relief has facial plausibility. Twombly,

. “A claim has facial 22 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 23 inference that the defendant is liable for the misconduct alleged.” Iqbal,

. When 24 considering whether a complaint states a claim, the court must accept the allegations as true, 25 Erickson v. Pardus,

(2007), and construe the complaint in the light most 26 favorable to the plaintiff, Scheuer v. Rhodes,

(1974). 27 ///// 28 ///// 1 PLAINTIFF’S COMPLAINT 2 Plaintiff’s complaint names four defendants: (1) Mule Creek State Prison (“MCSP”) 3 Warden Patrick Covello; (2) Correctional Officer Sliva; (3) John Doe 1; and (4) John Doe 2. 4 (ECF No. 1 at 2.) The complaint alleges violations of the Fifth, Eighth, and Fourteenth 5 Amendments, but provides no factual allegations. The complaint’s “Supporting Facts” sections 6 state “excessive force” (id. at 3, 4) with no elaboration. Its remaining fields refer the reader to the 7 attached exhibits that are made up of grievance documents and health care service request forms. 8 (Id. at 7-22.) 9 LEGAL STANDARDS 10 I.

11 A plaintiff may bring an action under

to redress violations of “rights, 12 privileges, or immunities secured by the Constitution and [federal] laws” by a person or entity, 13 including a municipality, acting under the color of state law.

. To state a claim 14 under

, a plaintiff must show that (1) a defendant acting under color of state law 15 (2) deprived plaintiff of rights secured by the Constitution or federal statutes. Benavidez v. 16 County of San Diego,

(9th Cir. 2021). 17 II. Linkage 18 Section 1983 requires that there be an actual connection or link between the actions of the 19 defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. 20 Department of Social Services,

(1978); Rizzo v. Goode,

, 370-71 21 (1976). Plaintiff may demonstrate that connection by alleging facts showing: (1) a defendant's 22 “personal involvement in the constitutional deprivation,” or (2) that a defendant set “in motion a 23 series of acts by others” or “knowingly refus[ed] to terminate a series of acts by others, which 24 [the defendant] knew or reasonably should have known would cause others to inflict a 25 constitutional injury.” Starr v. Baca,

(9th Cir. 2011) (quotation marks 26 and citation omitted). In other words, “[a] person ‘subjects’ another to the deprivation of a 27 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 28 in another's affirmative acts or omits to perform an act which he is legally required to do that 1 causes the deprivation of which complaint is made.” Johnson v. Duffy,

, 743 (9th 2 Cir. 1978) (citation omitted). 3 DISCUSSION 4 I. Failure to State a Claim 5 Having conducted the screening required by 28 U.S.C. § 1915A, the court finds that the 6 complaint does not state any valid claims for relief. The complaint contains no factual allegations 7 other than two vague references to “excessive force,” and then refers to the reader to the attached 8 exhibits. Under Rule 8(a) of the Federal Rules of Civil Procedure, it is plaintiff’s responsibility to 9 set forth, with respect to each defendant, “a short and plain statement of the claim” showing that 10 he is entitled to relief. While plaintiff may attach and incorporate exhibits to supplement his 11 allegations, “these attachments cannot take the place of well-pleaded factual allegations that must 12 appear in the body of the complaint.” Hurtado v. Walmart Stores, Inc., No. 1:14-CV-1706 JLT, 13

, at *6 (E.D. Cal. Dec. 23, 2014). Accordingly, the undersigned will not order 14 the complaint to be served on defendants. 15 II. Leave to Amend 16 Plaintiff may try to fix these problems by filing an amended complaint. In deciding 17 whether to file an amended complaint, plaintiff is provided with the relevant legal standards 18 governing his potential claims for relief which are attached to this order. See Attachment A. 19 From what the undersigned can surmise from the attached exhibits, it appears that plaintiff alleges 20 his right hand was caught in the building entrance door while defendant Sliva was on watch. 21 Plaintiff further complains that prison officials were deliberately indifferent to his hand injuries. 22 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 23 about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

370-71. The complaint must also allege in specific terms how each named defendant is involved. 25 Arnold v. Int’l Bus. Machs. Corp.,

(9th Cir. 1981). There can be no liability 26 under

unless there is some affirmative link or connection between a defendant’s 27 actions and the claimed deprivation. Id.; Johnson v. Duffy,

(9th Cir. 1978). 28 Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations 1 are not sufficient.” Ivey v. Bd. of Regents,

(9th Cir. 1982) (citations omitted). 2 Plaintiff is also informed that the court will not refer to a prior pleading in order to make 3 his amended complaint complete. Local Rule 220 requires that an amended complaint be 4 complete in itself without reference to any prior pleading. This is because, as a general rule, an 5 amended complaint supersedes any prior complaints. Loux v. Rhay,

(9th Cir. 6 1967) (citations omitted). Once plaintiff files an amended complaint, any previous complaint no 7 longer serves any function in the case. Therefore, in an amended complaint, as in an original 8 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 9 III. Plain Language Summary of Order for Party Proceeding Without a Lawyer 10 Your complaint will not be served because the facts alleged are not enough to state a 11 claim. A complaint must contain a “a short and plain statement of the claim,” and must include 12 more than just attachments. You are being given a chance to fix these problems by filing an 13 amended complaint. If you file an amended complaint, pay particular attention to the legal 14 standards attached to this order. Be sure to provide facts that show exactly what each defendant 15 did to violate your rights. Any claims and information not in the amended complaint will not 16 be considered. 17 CONCLUSION 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 20 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 21 is assessed an initial partial filing fee in accordance with the provisions of

1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 23 appropriate agency filed concurrently herewith. 24 3. Plaintiff’s complaint fails to state a claim upon which relief may be granted, see 28 25 U.S.C. § 1915A, and will not be served. 26 4. Within thirty days from the date of service of this order, plaintiff may file an amended 27 complaint that complies with the requirements of

, the Federal Rules of Civil 28 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 1 | number assigned this case, 2:25-cv-02951 SCR P, and must be labeled “First Amended 2 | Complaint.” 3 5. Failure to file an amended complaint in accordance with this order will result in a 4 || recommendation that this action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil 5 || Procedure. 6 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 7 || form used in this district. 8 | DATED: October 27, 2025

10 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Eighth Amendment Failure to Protect 6 The Eighth Amendment imposes on prison officials a duty to “take reasonable measures 7 to guarantee the safety of the inmates.” Farmer v. Brennan,

(1994) (citations 8 omitted). A prison official may be held liable for failing to ensure the safety of inmates only 9 where the inmate can show he was “incarcerated under conditions posing a substantial risk of 10 serious harm,” and that the prison official was deliberately indifferent to that risk.

. 11 Mere negligence on the part of the prison official is not sufficient to establish liability.

. 12 A prison official acts with deliberate indifference only if he “knows of and disregards an 13 excessive risk to inmate health and safety; the official must both be aware of facts from which the 14 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 15 inference.” Farmer,

. “Whether a prison official had the requisite knowledge of a 16 substantial risk is a question of fact subject to demonstration in the usual ways, including 17 inference from circumstantial evidence . . . and a factfinder may conclude that a prison official 18 knew of a substantial risk from the very fact that the risk was obvious.”

(citations 19 omitted). 20 II. Eighth Amendment Excessive Force 21 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 22 punishment on inmates which, in excessive force cases, has been defined as “the unnecessary and 23 wanton infliction of pain.” Whitley v. Albers,

(1986). “[W]henever prison 24 officials stand accused of using excessive physical force … the core judicial inquiry is … whether 25 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 26 sadistically to cause harm.” Hudson v. McMillan,

(1992). 27 The malicious and sadistic use of force to cause harm always violates contemporary 28 standards of decency, regardless of whether significant injury is evident.

. However, not 1 “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 2 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily 3 excludes from constitutional recognition de minimis uses of physical force, provided that the use 4 of force is not of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (internal 5 quotations marks and citations omitted). 6 III. Eighth Amendment Deliberate Indifference to Service Medical Need 7 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 8 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble,

(1976). An individual is liable for such a violation only when the individual is 10 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner,

1091, 1096 (9th Cir. 2006); Hallett v. Morgan,

(9th Cir. 2002); Lopez v.

F.3d 1122, 1131-32 (9th Cir. 2000). 13 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 14 F.3d at 1096 (citing McGuckin v. Smith,

(9th Cir. 1991), overruled on other 15 grounds by WMX Techs., Inc. v. Miller,

(9th Cir. 1997) (en banc)). First, the 16 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 17 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 18 pain.’” Id. (citing Estelle,

). “Examples of serious medical needs include ‘[t]he 19 existence of an injury that a reasonable doctor or patient would find important and worthy of 20 comment or treatment; the presence of a medical condition that significantly affects an 21 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez,

(citing McGuckin,

). 23 Second, the plaintiff must show the defendant’s response to the need was deliberately 24 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 25 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 26 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 27 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 28 “must also draw the inference.” Farmer v. Brennan,

(1994). This “subjective 1 approach” focuses only “on what a defendant’s mental attitude actually was.” (Id. at 839.) A 2 showing of merely negligent medical care is not enough to establish a constitutional violation. 3 Frost v. Agnos,

(9th Cir. 1998), citing Estelle,

. 4 “[T]o show deliberate indifference, the plaintiff must show that the course of treatment the 5 doctors chose was medically unacceptable under the circumstances and that the defendants chose 6 this course in conscious disregard of an excessive risk to the plaintiff’s health.” Hamby v. 7 Hammond,

(9th Cir. 2016) (citation and internal quotation marks omitted). 8 A difference of opinion about the proper course of treatment is not deliberate indifference, nor 9 does a dispute between a prisoner and prison officials over the necessity for or extent of medical 10 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung,

, 1058 11 (9th Cir. 2004); Sanchez v. Vild,

(9th Cir. 1989). Moreover, as for any § 1983 12 claim, there must be an actual causal link between the actions of the named defendants and the 13 alleged constitutional deprivation. See Monell v. Dep’t of Soc. Services,

, 691–92 14 (1978); May v. Enomoto,

(9th Cir. 1980). 15 16 17 18 19 20 21 22 23 24 25 26 27 28