# (PC) Petillo v. Baughman

> District Court, E.D. California · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10013786

## Case

- **Court:** District Court, E.D. California
- **Decided:** September 10, 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/10013786

## How later opinions describe it (automated extraction)

- holding that there is no 8 respondeat superior liability under § 1983

## Opinion text

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 SIDNEY PETILLO, No. 2:19-CV-0667-DMC-P
12 Plaintiff,
13 v. ORDER
14 D. BAUGHMAN, et al.,
15 Defendants.
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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. 7)
19 alleging violations of his rights under the Fourth Amendment, Eighth Amendment, and
20 Fourteenth Amendment. The document docketed as Plaintiff’s second amended civil rights
21 complaint (ECF No. 18) is construed as a motion for discovery, as such the motion is denied as
22 premature.
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24 I. SCREENING REQUIREMENT AND STANDARD
25 The Court is required to screen complaints brought by prisoners seeking relief
26 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
27 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
28 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
1 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).
2 The Federal Rules of Civil Procedure require complaints contain a “…short and
3 plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.
4 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual
5 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
6 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
7 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s
8 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.
9 Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
10 omitted).
11 Prisoners proceeding pro se in civil rights actions are entitled to have their
12 pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d
13 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be
14 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer
15 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation
16 marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
17 sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with
18 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks
19 omitted); Moss, 572F.3d at 969.
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21 II. PLAINTIFF’S ALLEGATIONS
22 Plaintiff names nine Defendants: (1) D. Boughman, (2) Clough, (3) Hainey, (4)
23 Mallet, (5) Jones, (6) Porter, (7) Herrera, (8) Castillo, and (9) Villasenor. Plaintiff alleges
24 Defendant Jones struck him in the chest while he was in the yard, causing Plaintiff to suffer a
25 laceration wound, violating his Eighth Amendment rights. Plaintiff also alleges Jones used
26 derogatory, discriminatory, homophobic, and racist language, violating Plaintiff’s Fourteenth
27 Amendment rights. Plaintiff contends Defendants Hainey and Mallot ordered him to be strip
28 searched without cause or justification in violation of the Fourth Amendment. Further, Plaintiff
1 alleges Mallot, Herrera, Castello, and Villasenor slammed him against a metal cage in violation of
2 his Eighth Amendment right against cruel and unusual punishment. In addition, Plaintiff alleges
3 Herrera grabbed, touched, and groped his genitalia, attempting to arouse Plaintiff in violation of
4 his Eighth Amendment rights. Finally, Plaintiff alleges Herrera and Costello, improperly strip
5 searched him in violation of his Fourth Amendment rights. Plaintiff alleges no facts indicating
6 Defendants Clough, Baughman, or Porter violated any of his constitutional rights.
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8 III. ANALYSIS
9 Plaintiff has alleged sufficient facts for his claims against Defendants Jones,
10 Hainey, Mallot, Herrera, Castello, and Villasenor to proceed past screening.
11 A. Defendant Porter
12 The Federal Rules of Civil Procedure require complaints contain a “…short and
13 plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.
14 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Claims must be
15 stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.
16 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the
17 defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. See Kimes v.
18 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because a plaintiff must allege, with at least some
19 degree of particularity, overt acts by specific defendants which support the claims, vague and
20 conclusory allegations fail to satisfy this standard. Additionally, to survive screening, Plaintiff’s
21 claims must be facially plausible, which requires sufficient factual detail to allow the Court to
22 reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at
23 678 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.
24 2009).
25 Plaintiff has alleged no facts indicating Defendant Porter violated any of Plaintiff’s
26 constitutional rights. The only factual information this Court was able to find related to Porter in
27 the complaint was that Porter stated, “I’ll go get him some boxer shorts.” ECF No. 7 at 7. This is
28 not sufficient to state a claim against Porter as it does not establish a constitutional violation.
1 Because Plaintiff has failed to show that Porter violated any constitutional right which would
2 entitle Plaintiff to relief, Plaintiff has failed to meet the Rule 8 pleading standard. See Kimes v.
3 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Thus, Plaintiff’s claim against Porter cannot pass
4 screening.
5 B. Defendants Baughman and Clough
6 Supervisory personnel are generally not liable under § 1983 for the actions of their
7 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no
8 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional
9 violations of subordinates if the supervisor participated in or directed the violations. See id. The
10 Supreme Court has rejected the notion that a supervisory defendant can be liable based on
11 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government
12 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct
13 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory
14 personnel who implement a policy so deficient that the policy itself is a repudiation of
15 constitutional rights and the moving force behind a constitutional violation may, however, be
16 liable even where such personnel do not overtly participate in the offensive act. See Redman v.
17 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
18 When a defendant holds a supervisory position, the causal link between such
19 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
20 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
21 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in
22 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
23 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the
24 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.
25 Plaintiff’s claims against Defendants Baughman and Clough are based on
26 supervisory liability. Plaintiff alleges no facts indicating Baughman and Clough engaged in any
27 activity that violated Plaintiff’s constitutional rights. Rather, Plaintiff asserts, because Baughman
28 and Clough are in supervisory positions, they are liable for the alleged violations of their
1 subordinates. This is an improper theory of liability under section 1983. See Taylor v. List, 880
2 F.2d 1040, 1045 (9th Cir. 1989). Further, Plaintiff does not allege there is a deficient policy
3 implemented by Baughman and Clough. Plaintiff’s allegations, in fact, are the exact opposite,
4 that Baughman and Clough’s subordinates violated existing policy when they allegedly violated
5 Plaintiff’s constitutional rights. For these reasons, Plaintiff’s claims against Baughman and
6 Clough cannot pass screening.
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8 IV. AMENDING THE COMPLAINT
9 Because it may be possible for the deficiencies identified in this order to be cured
10 by amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d
11 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an
12 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
13 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the
14 prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An
15 amended complaint must be complete in itself without reference to any prior pleading. See id.
16 This means, in practical terms, if Plaintiff files an amended complaint he must not only cure the
17 deficiencies identified in this order, but also reallege the cognizable claim(s) discussed in this
18 Court’s order
19 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
20 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
21 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
22 each named defendant is involved, and must set forth some affirmative link or connection
23 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
24 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
25 Because the complaint appears to otherwise state cognizable claims, if no amended
26 complaint is filed within the time allowed therefor, the court will issue findings and
27 recommendations that the claims identified herein as defective be dismissed, as well as such
28 further orders as are necessary for service of process as to the cognizable claims.
1 V. CONCLUSION
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. Plaintiff may file a second amended complaint within 30 days of the date
4 | of service of this order; and
5 3. Plaintiffs filing, which was docketed as Plaintiff’s second amended civil
6 | rights complaint (ECF No. 18), is construed as a motion for discovery, and as such the motion is
7 | DENIED.
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10 | Dated: September 9, 2019 Ssvcqo_
DENNIS M. COTA
12 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10013786. Public record. Not legal advice.