(PC) Richard v. Joseph

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CRAIG RICHARD, No. 2: 21-cv-0975 KJN P

12 Plaintiff,

13 v. ORDER

14 JOSEPH, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

18 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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

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 will be 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 will be 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 will be obligated to make monthly

27 payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust

28 account. These payments will be forwarded by the appropriate agency to the Clerk of the Court

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

2 U.S.C. § 1915(b)(2).

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

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

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

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

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

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

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

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

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

12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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

14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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

17 1227.

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

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

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

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

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

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

24 sufficient “to raise a right to relief above the speculative level.” Id. However, “[s]pecific facts

25 are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . .

26 . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

27 (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted).

28 In reviewing a complaint under this standard, the court must accept as true the allegations of the

1 complaint in question, id., and construe the pleading in the light most favorable to the plaintiff.

2 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468

3 U.S. 183 (1984).

4 Named as defendants are Correctional Officer Joseph and Sergeant Spalding. In claim

5 one, plaintiff alleges that during the months of August-October 2020, defendant Joseph sexually

6 harassed/assaulted plaintiff and defendant Spalding failed to intervene. These allegations state

7 potentially colorable Eighth Amendment claims.

8 In claim two, plaintiff alleges that in March 2021, he received a note from an inmate

9 stating that defendant Spalding told defendant Joseph that plaintiff filed a complaint against

10 defendant Joseph for touching plaintiff’s penis.1 Plaintiff alleges that he was told that his

11 complaint would be confidential. Plaintiff alleges that defendant Spalding violated the Eighth

12 Amendment when he discussed the complaint in front of other inmates. Plaintiff also alleges that

13 defendant Spalding discussed the complaint in front of other inmates in retaliation for plaintiff

14 filing the complaint.

15 For the following reasons, the undersigned finds that claim two does not state a potentially

16 colorable Eighth Amendment claim against defendant Spalding.

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

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

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

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

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

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

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

24 (9th Cir. 1998). Rather, a plaintiff must set forth facts to show that a defendant knew of, but

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

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

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28 1 By complaint, it appears that plaintiff is referring to an administrative grievance.

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

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

3 sufficient to establish knowledge. Id. at 842.

4 Plaintiff alleges that disclosure of his complaint against defendant Joseph to other inmates

5 caused other inmates to “blackball” plaintiff by turning other inmates against plaintiff. These

6 allegations are too vague and conclusory for the undersigned to find that disclosure of the

7 complaint to other inmates created a serious risk of harm to plaintiff. Plaintiff does not explain

8 why disclosure of the complaint caused other inmates to turn against him. Plaintiff also does not

9 adequately explain the specific risk of harm created by disclosure of the complaint to other

10 inmates. Plaintiff’s claim that inmates would “turn against him” is vague and conclusory.

11 Accordingly, this Eighth Amendment claim against defendant Spalding is dismissed.

12 “Within the prison context, a viable claim of First Amendment retaliation entails five

13 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

14 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

15 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

16 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations omitted).

17 Plaintiff has not pled sufficient facts demonstrating that defendant Spalding discussed the

18 complaint against defendant Joseph in front of other inmates because of plaintiff’s exercise of his

19 First Amendment rights. Mere conclusions of hypothetical retaliation are insufficient, a prisoner

20 must “allege specific facts showing retaliation because of the exercise of the prisoner’s

21 constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 (n.1) (10th Cir. 1990). If plaintiff

22 files an amended complaint, he shall include additional facts supporting his claim that defendant

23 Spalding acted with a retaliatory motive when he discussed his complaint against defendant

24 Joseph in front of other inmates.

25 In claim two, plaintiff also alleges that when he transferred to a housing unit away from

26 defendant Joseph, on several occasions defendant Joseph came to his new housing unit and stared

27 at plaintiff out of the corner of his eye, “inferring fear tactics.” Plaintiff alleges that defendant

28 Joseph engaged in these fear tactics in retaliation for plaintiff filing the complaint against him.

1 Plaintiff apparently claims that defendant Joseph’s adverse action was to come to

2 plaintiff’s new housing unit on several occasions and stare at plaintiff out of the corner of his eye,

3 in an attempt to intimidate plaintiff. These allegations do not demonstrate that defendant Joseph

4 took an adverse action against plaintiff. An adverse action sufficient to support a retaliation claim

5 requires “more than minimal” harm. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).

6 Plaintiff does not allege how many times defendant Joseph came to his new housing unit.

7 Plaintiff does not allege that defendant Joseph said anything to plaintiff when he went to

8 plaintiff’s new housing unit. Plaintiff’s claim that defendant Joseph looked at plaintiff out of the

9 corner of his eye on several occasions, standing alone, does not demonstrate that defendant

10 Joseph took an adverse action against plaintiff. Accordingly, this claim is dismissed.

11 Plaintiff may proceed forthwith to serve defendants Joseph and Spalding with the

12 potentially colorable Eighth Amendment claims or he may delay service and attempt to cure the

13 pleading defects as to the other claims found not potentially colorable, as discussed above.

14 If plaintiff elects to attempt to amend his complaint to state a cognizable claim against the

15 remaining defendants, he has thirty days in which to do so. He is not obligated to amend his

16 complaint.

17 If plaintiff elects to proceed forthwith against defendants Joseph and Spalding as to the

18 potentially colorable Eighth Amendment claims, he shall return the attached notice within thirty

19 days. Following receipt of that notice, the court will order service of defendants Joseph and

20 Spalding as to the potentially colorable Eighth Amendment claims.

21 Plaintiff is advised that in an amended complaint he must clearly identify each defendant

22 and the action that defendant took that violated his constitutional rights. The court is not required

23 to review exhibits to determine what plaintiff’s charging allegations are as to each named

24 defendant. The charging allegations must be set forth in the amended complaint so defendants

25 have fair notice of the claims plaintiff is presenting.

26 Any amended complaint must show the federal court has jurisdiction, the action is brought

27 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

28 contain a request for particular relief. Plaintiff must identify as a defendant only persons who

1 personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

2 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation

3 of a constitutional right if he does an act, participates in another’s act or omits to perform an act

4 he is legally required to do that causes the alleged deprivation). If plaintiff contends he was the

5 victim of a conspiracy, he must identify the participants and allege their agreement to deprive him

6 of a specific federal constitutional right.

7 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

8 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

9 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

10 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

11 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

12 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

13 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

14 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

15 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

16 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

17 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. Plaintiff must

18 not include any preambles, introductions, argument, speeches, explanations, stories, griping,

19 vouching, evidence, attempts to negate possible defenses, summaries, and the like. McHenry v.

20 Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for

21 violation of Rule 8 after warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998)

22 (reiterating that “firm application of the Federal Rules of Civil Procedure is fully warranted” in

23 prisoner cases). The court (and defendant) should be able to read and understand plaintiff’s

24 pleading within minutes. McHenry, 84 F.3d at 1179-80. A long, rambling pleading including

25 many defendants with unexplained, tenuous or implausible connection to the alleged

26 constitutional injury, or joining a series of unrelated claims against many defendants, very likely

27 will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing plaintiff’s

28 action pursuant to Fed. R. Civ. P. 41 for violation of these instructions.

1 A district court must construe a pro se pleading “liberally” to determine if it states a claim

2 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an

3 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are

4 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

7 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556

8 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570).

9 A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

10 defendant is liable for the misconduct alleged. The plausibility

standard is not akin to a “probability requirement,” but it asks for

11 more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

12 defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

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14 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions

15 can provide the framework of a complaint, they must be supported by factual allegations, and are

16 not entitled to the assumption of truth. Id. at 1950.

17 An amended complaint must be complete in itself without reference to any prior pleading.

18 Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015)

19 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non-

20 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original

21 pleading is superseded.

22 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

23 has evidentiary support for his allegations, and for violation of this rule the court may impose

24 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

25 A prisoner may bring no § 1983 action until he has exhausted such administrative

26 remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v.

27 Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “departmental

28 policies, decisions, actions, conditions, or omissions that have a material adverse effect on the[ir]

1 || welfare. ...” Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be presented on a CDC

2 | form 602 that asks simply that the prisoner “describe the problem” and “action requested.”

3 || Therefore, this court ordinarily will review only claims against prison officials within the scope of

4 | the problem reported in a CDC form 602 or an interview or claims that were or should have been

5 || uncovered in the review promised by the department.

6 Accordingly, IT IS HEREBY ORDERED that:

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

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

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

10 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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

12 || herewith.

13 3. All claims but for the potentially colorable Eighth Amendment claims against

14 | defendants Joseph and Spalding are dismissed with leave to amend. Within thirty days of service

15 | of this order, plaintiff may amend his complaint to attempt to state cognizable claims against

16 || these defendants. Plaintiff is not obliged to amend his complaint.

17 4. The allegations in the pleading are sufficient to state potentially cognizable Eighth

18 | Amendment claims against defendant Joseph and Spalding. See 28 U.S.C. § 1915A. If plaintiff

19 || opts to proceed on his original complaint as to these defendants, he shall return the attached

20 || notice within thirty days of service of this order.

21 5. Failure to comply with this order will result in a recommendation that this action be

22 || dismissed.

23 || Dated: July 6, 2021

4 Foci) Aharon

25 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CRAIG RICHARD, No. 2: 21-cv-0975 KJN P

12 Plaintiff,

13 v. NOTICE

14 JOSEPH, et al.,

15 Defendants.

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Plaintiff opts to proceed with the original complaint as to defendants Joseph and

17 Spalding and the potentially colorable Eighth Amendment claims discussed in the

screening order.

18 Plaintiff consents to the dismissal of those claims found not potentially colorable

in the screening order without prejudice. ______

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OR

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_____ Plaintiff opts to file an amended complaint and delay service of process.

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DATED:

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_______________________________

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