# (PC) Brown v. Emmert > District Court, E.D. California · August 16, 2022 URL: https://www.frixlaw.com/law-library/cases/10046585 ## Case - **Court:** District Court, E.D. California - **Decided:** August 16, 2022 - **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/10046585 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ANTHONY BROWN, No. 2:22-cv-1001 CKD P 12 Plaintiff, 13 v. ORDER 14 W. EMMERT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil action. This proceeding was 18 referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 ///// 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 Having conducted the required screening, the court finds that plaintiff may proceed on the 7 following claims: 8 1. A claim arising under the Eighth Amendment against defendant Emmert for exposure 9 to harmful conditions of confinement when Emmert referred to plaintiff as a “rat” over a loud- 10 speaker. 11 2. Claims arising under the Eighth Amendment against defendants Wooden and Gonzales 12 for exposure to harmful conditions of confinement with respect to their not taking preventative 13 measures when defendant Emmert referred to plaintiff as a “rat” over a loud-speaker. 14 3. A claim arising under the First Amendment against defendant Emmert for retaliating 15 against plaintiff for filing a prisoner grievance by calling plaintiff a “rat” over a loud-speaker and 16 by denying plaintiff phone calls and showers. 17 4. Claims arising under the Eighth Amendment for failure to provide medical treatment 18 against defendants Drake, Tuyen, Archie and Lieu for their failure to provide plaintiff with his 19 inhaler and decontaminate plaintiff from exposure to pepper spray. 20 At this point, plaintiff has two options: 1) proceed on the claims identified above; or 2) 21 attempt to cure the deficiencies in plaintiff’s complaint in an amended complaint. In considering 22 whether to amend, the court advises plaintiff as follows: 23 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 24 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 25 362 (1976). Furthermore, vague and conclusory allegations of official participation in civil rights 26 violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 27 In order for conditions of confinement to amount to a violation of the Eighth Amendment, 28 the conditions must amount to cruel and unusual punishment. The occasional denial of a shower 1 | or phone calls does not amount to cruel and unusual punishment. Denial of a shower for an 2 || extended period of time can violate a prisoner’s right to personal hygiene. Toussaint v. 3 || McCarthy, 597 F. Supp.1388, 1411 (N.D. Cal. 1984). 4 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 5 || make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 6 || complaint be complete in itself without reference to any prior pleading. This is because, as a 7 || general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 8 | F.2d 55,57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 9 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 10 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 1] In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 14 | shall be collected and paid in accordance with this court’s order to the Director of the California 15 || Department of Corrections and Rehabilitation filed concurrently herewith. 16 3. Plaintiffis granted 21 days within which to complete and return the attached form 17 || notifying the court whether he wants to proceed on the claims described in this order or whether 18 || he wishes to file an amended complaint in an attempt to cure the deficiencies in his original 19 | complaint. If plaintiff does not return the form, this action will proceed on the claims described 20 || above. 21 | Dated: August 16, 2022 / □□ I / dle ae 22 CAROLYNK. DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 || 1th brow1001.op 27 28 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 MARK ANTHONY BROWN, No. 2:22-cv-1001 CKD P 5 Plaintiff, 6 v. PLAINTIFF’S NOTICE OF 7 W. EMMERT, et al., HOW TO PROCEED 8 Defendants. 9 10 Check one: 11 _____ Plaintiff wants to proceed immediately on the following claims: 12 1. A claim arising under the Eighth Amendment against defendant Emmert for exposure 13 to harmful conditions of confinement when Emmert referred to plaintiff as a “rat” over a loud- 14 speaker. 15 2. Claims arising under the Eighth Amendment against defendants Wooden and Gonzales 16 for exposure to harmful conditions of confinement with respect to their not taking preventative 17 measures when defendant Emmert referred to plaintiff as a “rat” in front over a loud speaker. 18 3. A claim arising under the First Amendment against defendant Emmert for retaliating 19 against plaintiff for filing a prisoner grievance by calling plaintiff a “rat” over a loud-speaker and 20 denying plaintiff phone calls and showers. 21 4. Claims arising under the Eighth Amendment for failure to provide medical treatment 22 against defendants Drake, Tuyen, Archie and Lieu for their failure to provide plaintiff with his 23 inhaler and decontaminate plaintiff from exposure to pepper spray. 24 _____ Plaintiff wants time to file an amended complaint. 25 DATED: 26 27 Plaintiff’s Signature 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10046585. Public record. Not legal advice.