(PC) Nguyen v. Givens

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 NGUYEN LUC VAN, No. 2:20-cv-0502 KJN P

12 Plaintiff,

13 v. ORDER

14 GIVENS, et al.,

15 Defendants.

16

17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

21 Accordingly, the request to proceed in forma pauperis is granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These

28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the

1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

2 § 1915(b)(2).

3 As discussed below, plaintiff’s complaint is dismissed with leave to amend.

4 I. Screening Standards

5 The court is required to screen complaints brought by prisoners seeking relief against a

6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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

11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

19 1227.

20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

6 II. Plaintiff’s Allegations

7 Plaintiff’s complaint includes numerous unrelated claims, all based on incidents that took

8 place at California Medical Facility (“CMF”), against Correctional Officer Givens, inmate

9 Freeman Clifton, Warden Jared Lazono, and Dr. Beck. Plaintiff has since been transferred to the

10 California Health Care Facility.

11 In his first claim, marked “threat to safety,” plaintiff alleges that defendant Givens refused

12 to let plaintiff seal his confidential legal mail. Plaintiff alleges that while housed in the D. Dorm,

13 “they” fed plaintiff poison and tried to kill him. Plaintiff claims that inmate Clifton was housed

14 in upper bunk 134 and plaintiff was housed in lower bunk 134, and on August 22, 2019, Clifton

15 tried to murder plaintiff. Following plaintiff’s return from the hospital, he was taken to the

16 committee room where Warden Lazona ordered plaintiff to be housed in the SHU for ninety days

17 for investigation. Plaintiff claims “they” tried to kill plaintiff in the SHU. On November 20,

18 2019, plaintiff returned to committee, where the investigation and plaintiff’s case with the district

19 attorney was discussed; thereafter, defendant Dr. Beck put plaintiff in EOP.

20 While not entirely clear, it appears that plaintiff maintains that inmate Clifton was the

21 aggressor on August 22, 2019, and is lying about what took place and fabricated evidence, but

22 plaintiff was cited for battery despite his protestations of innocence, and his case was referred to

23 the district attorney for possible criminal prosecution. (ECF No. 1 at 10, 17.)

24 In his second claim, marked “retaliation,” plaintiff repeats his claim that defendant Givens

25 would not let plaintiff seal his legal document, but adds that Givens also read the document and

26 involved all staff at CMF. On December 4, 2019, the Captain told plaintiff “you must die,” and

27 claims all staff at CMF hate plaintiff. Plaintiff appears to state that since they could not poison

28 plaintiff, they set plaintiff up for inmate Clifton to kill plaintiff on August 22, 2019. But plaintiff

1 then states that “they trie[d] to do [it] again, from Dr. Beck and all Correctional Officers, to the

2 Nurse, by feeding plaintiff food with poison while plaintiff was in the SHU and the ASU. (ECF

3 No. 1 at 4.) Plaintiff also claims that “they” slandered plaintiff.

4 In his third claim, marked “excessive force,” plaintiff avers that on December 4, 2019, the

5 captain in the committee room used excessive force on plaintiff with no reason, and also

6 slandered plaintiff. (ECF No. 1 at 5.)

7 III. Discussion

8 A. Improper Joinder

9 Plaintiff’s claims asserted in the complaint are not properly joined under Federal Rule of

10 Civil Procedure 20(a) concerning joinder of claims and defendants. Rule 20(a) provides that all

11 persons may be joined in one action as defendants if “any right to relief is asserted against them

12 jointly, severally, or in the alternative with respect to or arising out of the same transaction,

13 occurrence, or series of transactions or occurrences” and “any question of law or fact common to

14 all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. Smith, 507

15 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against unrelated defendants belong in different

16 suits”). If unrelated claims are improperly joined, the court may dismiss them without prejudice.

17 Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & Mary Kay Kane, Richard Marcus, Federal

18 Practice and Procedure § 1684 (3d ed. 2012); Michaels Building Co. v. Ameritrust Co., 848 F.2d

19 674, 682 (6th Cir. 1988) (affirming dismissing under Rule 21 of certain defendants where claims

20 against those defendants did not arise out of the same transaction or occurrences, as required by

21 Rule 20(a)).

22 Where parties have been misjoined, the court may drop a party or sever the claims against

23 that party. Fed. R. Civ. P. 21. “[D]istrict courts who dismiss rather than sever must conduct a

24 prejudice analysis, including ‘loss of otherwise timely claims if new suits are blocked by statutes

25 of limitations.’” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting DirecTV,

26 Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir. 2006)). Here, because such unrelated claims are based

27 on relatively recent incidents, August and December of 2019, plaintiff will not be prejudiced by

28 their dismissal, without prejudice, from this action. Plaintiff may attempt to pursue such claims

1 in separate, timely actions. See also George, 507 F.3d at 607 (“Unrelated claims against

2 unrelated defendants belong in different suits”).

3 B. The Civil Rights Act

4 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

5 constitutional or statutory right; and (2) that the violation was committed by a person acting under

6 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

7 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

8 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

9 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

10 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

11 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

12 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

13 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights,

14 and set forth specific factual allegations as to how such person violated plaintiff’s rights.

15 Under the Civil Rights Act, plaintiff cannot state a cognizable civil rights claim against

16 inmate Clifton because he was not acting under color of state law. Plaintiff’s allegations as to the

17 warden and Dr. Beck are also insufficient to state a cognizable civil rights claim. Simply holding

18 a committee hearing or placing plaintiff on EOP, without more, does not demonstrate that

19 plaintiff’s constitutional rights were violated. Finally, plaintiff’s claim that defendant Givens

20 refused to seal confidential legal mail on one occasion, standing alone, is insufficient to state a

21 cognizable civil rights claim. Plaintiff must provide specific factual allegations as to each

22 element of the constitutional violation alleged against each named defendant.

23 Plaintiff is advised that he cannot state a cognizable civil rights claim against the warden

24 based solely on his supervisory role as warden. Rather, plaintiff must demonstrate that the

25 warden was personally involved or causally connected to the alleged constitutional violation. See

26 Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (supervisory liability under § 1983 requires

27 a showing that a supervisor was personally involved or there is a sufficient causal connection).

28 ////

1 Liability may not be imposed on supervisory personnel under the theory of respondeat superior.

2 Ashcroft v. Iqbal, 556 U.S. at 662, 676-77 (2009).

3 Moreover, plaintiff’s claims of slander or defamation do not rise to the level of a federal

4 constitutional violation. See Paul v. Davis, 424 U.S. 693, 699-701 (1976) (holding defamation is

5 not actionable under § 1983); Hernandez v. Johnson, 833 F.2d 1316, 1319 (9th Cir. 1987)

6 (holding that libel and slander claims are precluded by Paul); Whatley v. Gray, 2018 WL 828200,

7 at *2 (S.D. Cal. Feb. 8, 2018); Sadler v. Dutton, 2017 WL 3217119, at *6 (D. Mont. June 1,

8 2017), adopted, 2017 WL 3219479 (D. Mont. July 28, 2017). Allegations of harassment are also

9 not cognizable under section 1983. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1982)

10 (allegations of harassment with regards to medical problems not cognizable). Plaintiff should not

11 renew such claims in his amended complaint.

12 C. Standards Governing Potential Claims

13 The following legal standards may apply to plaintiff’s intended claims for relief.

14 1. Eighth Amendment - Failure to Protect

15 The Eighth Amendment requires prison officials to take reasonable measures to guarantee

16 the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison

17 officials have an affirmative duty to protect inmates from violence at the hands of other inmates.

18 See id. at 833. To establish a violation of a prison official’s duty to take reasonable steps to

19 protect inmates from physical abuse, the prisoner must establish that prison officials were

20 “deliberately indifferent” to serious threats to the inmate’s safety. Farmer, 511 U.S. at 834.

21 “Mere negligence is not sufficient to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128

22 (9th Cir. 1998). Rather, a plaintiff must set forth facts to show that a defendant knew of, but

23 disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is, “the official

24 must both be aware of facts from which the inference could be drawn that a substantial risk of

25 serious harm exists, and he must also draw the inference.” Id. To prove knowledge of the risk,

26 the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be

27 sufficient to establish knowledge. Farmer, 511 U.S. at 842.or

28 ////

1 2. First Amendment: Retaliation

2 “Prisoners have a First Amendment right to file grievances against prison officials and to

3 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)

4 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the

5 prison context has five elements: “(1) An assertion that a state actor took some adverse action

6 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

7 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

8 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

9 2005). Prisoners must allege facts demonstrating each element of a retaliation claim.

10 3. Eighth Amendment: Excessive Force

11 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

12 restraints on prison officials, who may not . . . use excessive physical force against prisoners.”

13 Farmer, 511 U.S. at 832 (citing Hudson v. McMillian, 503 U.S. 1 (1992)). “[W]henever prison

14 officials stand accused of using excessive physical force in violation of the [Eighth Amendment],

15 the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or

16 restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing

17 Whitley v. Albers, 475 U.S. 312 (1986)). When determining whether the force was excessive, we

18 look to the “extent of the injury. . . , the need for application of force, the relationship between

19 that need and the amount of force used, the threat ‘reasonably perceived by the responsible

20 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503

21 U.S. at 7 (citing Whitley, 475 U.S. at 321). While de minimis uses of physical force generally do

22 not implicate the Eighth Amendment, significant injury need not be evident in the context of an

23 excessive force claim, because “[w]hen prison officials maliciously and sadistically use force to

24 cause harm, contemporary standards of decency always are violated.” Hudson, at 9 (citing

25 Whitley, at 327). In pleading an excessive force claim, prisoners must provide specific facts as to

26 each of the elements set forth in Hudson.

27 ////

28 ////

1 IV. Leave to Amend

2 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

3 unable to determine whether the current action is frivolous or fails to state a claim for relief. The

4 court has determined that the complaint does not contain a short and plain statement as required

5 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

6 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

7 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

8 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim.

9 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

10 complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

11 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

12 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,

13 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how

14 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no

15 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

16 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633

17 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official

18 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,

19 268 (9th Cir. 1982).

20 Plaintiff may only pursue related claims against related defendants in his amended

21 complaint.1

22

1 As discussed above, a plaintiff may properly assert multiple claims against a single defendant.

23 Fed. Rule Civ. P. 18. Also, a plaintiff may join multiple defendants in one action where “any

right to relief is asserted against them jointly, severally, or in the alternative with respect to or

24 arising out of the same transaction, occurrence, or series of transactions and occurrences” and

“any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.

25

20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See

George, 507 F.3d at 607. This rule is intended “not only to prevent the sort of morass [a multiple

26

claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing

27 fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals

that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).”

28 George, 507 F.3d at 607.

1 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

2 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended

3 | complaint be complete in itself without reference to any prior pleading. This requirement exists

4 | because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

5 | v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

6 || supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

7 | omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any

8 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

9 | and the involvement of each defendant must be sufficiently alleged.

10 In accordance with the above, IT IS HEREBY ORDERED that:

11 1. Plaintiff's request for leave to proceed in forma pauperis is granted.

12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

13 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

14 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

15 || Director of the California Department of Corrections and Rehabilitation filed concurrently

16 || herewith.

17 3. Plaintiff's complaint is dismissed.

18 4. Within thirty days from the date of this order, plaintiff shall complete the attached

19 | Notice of Amendment and submit the following documents to the court:

20 a. The completed Notice of Amendment; and

21 b. An original and one copy of the Amended Complaint.

22 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the

23 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

24 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

25 Failure to file an amended complaint in accordance with this order may result in the

26 || dismissal of this action.

27 | Dated: March 16, 2020

/van0502.14n

28 Fesbl Arn

EENDALLJ.NE

TINTITED STATES MA CTETE ATE TINncEe

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

10

NGUYEN LUC VAN, No. 2:20-cv-0502 KJN P

11

Plaintiff,

12

v. NOTICE OF AMENDMENT

13

GIVENS, et al.,

14

Defendants.

15

16

17 Plaintiff hereby submits the following document in compliance with the court's order

18 filed______________.

19 _____________ Amended Complaint

DATED:

20

21

________________________________

Plaintiff

22

23

24

25

26

27

28