# (PC) Davis v. Wheeler > District Court, E.D. California · September 4, 2019 URL: https://www.frixlaw.com/law-library/cases/10013627 ## Case - **Court:** District Court, E.D. California - **Decided:** September 4, 2019 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10013627 ## How later opinions describe it (automated extraction) - holding that there is 5 no respondeat superior liability under § 1983 ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DAVIS, No. 2:16-CV-2917-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 Z. WHEELER, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint (ECF No. 19). 19 Plaintiff alleges Defendants violated his rights under the First Amendment and Eighth 20 Amendment. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. SCREENING REQUIREMENT AND STANDARD 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 5 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 6 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 7 The Federal Rules of Civil Procedure require complaints contain a “…short and 8 plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v. 9 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual 10 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s 13 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. 14 Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 15 omitted). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their 17 pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 18 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation 21 marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The 22 sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 23 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks 24 omitted); Moss, 572F.3d at 969. 25 /// 26 /// 27 /// 28 /// 1 II. PLAINTIFF’S ALLEGATIONS 2 Plaintiff names the following as defendants: (1) Z. Wheeler (2) N. Romney (3) 3 Scott Kernan (4) D. Baughman. See ECF No. 19, at 2. Plaintiff raises two claims. First, Plaintiff 4 alleges Defendants Z. Wheeler and N. Romney retaliated against him, in violation of his First 5 Amendment rights, by threatening Plaintiff with physical violence because he is a patient of the 6 Enhance Out Patient Program (“EOP”) and because he attempted to reach out for help when 7 having suicidal ideations. Id. at 17. Second, Plaintiff alleges Defendants Z. Wheeler and N. 8 Romney violated his Eighth Amendment rights by using excessive force, despite Plaintiff 9 allegedly not violating any prison rules or acting disruptively at the time. Id. Plaintiff claims 10 while Defendants Z. Wheeler and N. Romney escorted him to a medical triage treatment area, he 11 was verbally harassed, taunted, and ridiculed by both Defendants. Id. at 3. Plaintiff alleges 12 Defendants, in order to prove a point, twice threw Plaintiff face first into the pavement, twisting 13 and jumping on Plaintiff’s back, wrist, and left shoulder. Id. Plaintiff alleges he was handcuffed 14 and in leg restraints and did not jerk, yank, or pose any threat to the officers. Id. at 4. Plaintiff 15 states he was immediately treated by emergency room staff for wounds to both of his wrists and 16 abrasions to his left shoulder. Id. Plaintiff does not specifically address Defendants Scott Kernan 17 and D. Baughman in the complaint. 18 19 III. DISCUSSION 20 As currently set forth, this Court finds Plaintiff alleges sufficient facts in his 21 Eighth Amendment claim to pass screening. However, Plaintiff’s First Amendment claim fails 22 because it is unclear to the Court whether Plaintiff is alleging retaliation for being an EOP 23 member and needing mental health care, or if Plaintiff alleges a violation of the Americans with 24 Disabilities Act (“ADA”). Plaintiff’s claims against Defendants Scott Kernan and D. Baughman 25 fail to meet the pleading standard under Federal Rule of Civil Procedure Rule 8, as Plaintiff fails 26 to specify which Defendant engaged in conduct that lead to an alleged constitutional violation. 27 /// 28 /// 1 A. Claims Against Defendants Scott Kernan and D. Baughman 2 1. Causal Link 3 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 4 connection or link between the actions of the named defendants and the alleged deprivations. See 5 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 6 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 7 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 8 an act which he is legally required to do that causes the deprivation of which complaint is made.” 9 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 10 concerning the involvement of official personnel in civil rights violations are not sufficient. See 11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 12 specific facts as to each individual defendant’s causal role in the alleged constitutional 13 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 14 Here, Plaintiff failed to specifically name or address Defendants Scott Kernan and 15 D. Baughman in the complaint, and Plaintiff does not allege facts to establish how these 16 defendants’ personal conduct violated Plaintiff’s constitutional or statutory rights. Because 17 Plaintiff fails to allege any facts indicating how Defendants Scott Kernan and D. Baughman 18 engaged in the alleged unconstitutional action, Plaintiff has failed to satisfy the Rule 8 pleading 19 standard. Further, because Plaintiff failed to attribute any of the alleged unconstitutional conduct 20 to either Scott Kernan and D. Baughman, this Court is unable to engage in a substantive analysis 21 to determine if sufficient facts exist to support a claim. Plaintiff will be provided an opportunity 22 to amend the complaint to set forth specific facts as to Defendants Scott Kernan and D. 23 Baughman demonstrating what each Defendant did and how that action or inaction violated 24 Plaintiff’s constitutional rights. 25 /// 26 /// 27 /// 28 /// 1 2. Supervisory Liability 2 Further, the Court observes Defendants Scott Kernan and D. Baughman hold 3 supervisory positions. Supervisory personnel are generally not liable under § 1983 for the actions 4 of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is 5 no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 6 violations of subordinates if the supervisor participated in or directed the violations. See id. The 7 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 8 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 9 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 10 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 11 personnel who implement a policy so deficient that the policy itself is a repudiation of 12 constitutional rights and the moving force behind a constitutional violation may, however, be 13 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 14 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 15 When a defendant holds a supervisory position, the causal link between such 16 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 17 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 18 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 19 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 20 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 21 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 22 Here, Plaintiff appears to allege Defendants Scott Kernan and D. Baughman are 23 liable as supervisory personnel, asserting that as supervisors, these Defendants are liable for the 24 conduct of their subordinates. This is a respondeat superior theory of liability which is not 25 cognizable under § 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff is 26 advised that in amending the complaint it is necessary to allege that, through the individual 27 supervisors’ action or inaction, Plaintiff’s constitutional rights were violated. 28 /// 1 B. Claims Against Defendants Z. Wheeler and N. Romney 2 1. First Amendment – Retaliation 3 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 4 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 5 action was not related to a legitimate penological purpose, such as preserving institutional 6 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 7 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 8 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 9 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 10 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 11 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 12 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 13 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 14 action against the inmate; (2) the adverse action was taken because the inmate engaged in 15 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 16 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. 17 As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not 18 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm 19 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of 20 example, the court cited Pratt in which a retaliation claim had been decided without discussing 21 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to 22 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate 23 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly 24 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse 25 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also 26 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action 27 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the 28 chilling effect element is essentially subsumed by adverse action. 1 As currently set forth, this claim cannot pass screening because it is unclear if 2 Plaintiff is alleging Defendants Z. Wheeler and N. Romany retaliated against him because he is in 3 the EOP program and because he was seeking mental health care, or if Plaintiff is attempting to 4 allege Defendants discriminated against him because of a mental disability that causes suicidal 5 ideations. If Plaintiff intends the former, then the claim in its current state cannot pass screening 6 because being a member of the EOP and attempting to access mental health care is not 7 constitutionally protected conduct. 8 However, if Plaintiff intends the latter claim, then Plaintiff seeks to bring a claim 9 under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Title II of the 10 ADA “prohibit[s] discrimination on the basis of disability.” See Lovell v. Chandler, 202 F.3d 11 1039, 1052 (9th Cir. 2002). “To establish a violation of Title II of the ADA, a plaintiff must 12 show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from 13 participation in or otherwise discriminated against with regard to a public entity’s services, 14 programs, or activities; and (3) such exclusion or discrimination was by reason of [his] 15 disability.” Id. Because Plaintiff has not plead facts that establish he is a qualified individual 16 with a disability under the ADA, this claim in its current state cannot pass the screening stage. 17 Plaintiff will be provided an opportunity to amend the complaint to set forth specific facts as to 18 the exact claim he is asserting. 19 2. Eighth Amendment – Excessive Force 20 The treatment a prisoner receives in prison and the conditions under which the 21 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 22 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 23 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 24 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 25 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 26 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 27 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 28 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 1 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 2 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 3 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 4 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 5 official must have a “sufficiently culpable mind.” See id. 6 When prison officials stand accused of using excessive force, the core judicial 7 inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline, 8 or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 9 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as 10 opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, 11 is applied to excessive force claims because prison officials generally do not have time to reflect 12 on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 13 U.S. at 320-21. In determining whether force was excessive, the court considers the following 14 factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship 15 between the need for force and the amount of force used; (4) the nature of the threat reasonably 16 perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. 17 See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force 18 was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 19 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, 20 because the use of force relates to the prison’s legitimate penological interest in maintaining 21 security and order, the court must be deferential to the conduct of prison officials. See Whitley, 22 475 U.S. at 321-22. 23 Here, Plaintiff alleges he was twice thrown face-first to the ground by Defendants 24 Z. Wheeler and N. Romany. Plaintiff alleges while he was handcuffed and in leg restraints, both 25 Defendants twisted and jumped on his back, wrist, and left shoulder, and his body was dug into 26 the pavement. Plaintiff claims at the time he was not violating any prison rules, he was not acting 27 disruptively, and that he did not jerk, yank, or pose any threat to cause the alleged excessive 28 force. Further, Plaintiff claims he was immediately treated by emergency room staff for wounds 1 | to both of his wrists and abrasions to his left shoulder. The complaint pleads sufficient facts 2 | related to the excessive force claim to proceed past the screening stage. 3 4 IV. CONCLUSION 5 Because it is possible that the deficiencies identified in this order may be cured by 6 | amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 7 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 8 || amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the 10 | prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 11 | amended complaint must be complete in itself without reference to any prior pleading. See id. 12 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 13 || conditions complained of have resulted in a deprivation of plaintiffs constitutional rights. See 14 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 || each named defendant is involved, and must set forth some affirmative link or connection 16 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Because the complaint appears to otherwise state cognizable claims, if no amended 19 | complaint is filed within the time allowed therefor, the court will issue findings and 20 | recommendations that the claims identified herein as defective be dismissed, as well as such 21 | further orders as are necessary for service of process as to the cognizable claims. 22 Accordingly, IT IS HEREBY ORDERED that plaintiff may file a second amended 23 | complaint within 30 days of the date of service of this order. 24 25 | Dated: September 4, 2019 Sx