# (PC) Lake v. Covello > District Court, E.D. California · July 27, 2023 URL: https://www.frixlaw.com/law-library/cases/10054433 ## Case - **Court:** District Court, E.D. California - **Decided:** July 27, 2023 - **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/10054433 ## How later opinions describe it (automated extraction) - holding that there is no 27 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 DARIUS DE’MON LAKE, No. 2:23-CV-1311-DMC-P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, 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 complaint, ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS 10 Plaintiff names the following as defendants: (1) Patrick Covello, the Warden at 11 Mule Creek State Prison (MCSP); (2) Jeremy Rowe, a Correctional Officer at MCSP; (3) K. 12 Green, a Correctional Officer at MCSP; and (4) Landreth, a Correctional Officer at MCSP. See 13 ECF No. 1, pgs. 1-2. In his first and third claims, Plaintiff alleges that Defendants Rowe, Green, 14 and Landreth used excessive force when they punched, kicked, and choked Plaintiff as he was 15 attempting to “prone out.” Id. at 3, 5. In his second claim, Plaintiff alleges “improper 16 investigation of crime.” Id. at 4. The only named defendant mentioned in this claim is Defendant 17 Covello, the prison Warden. See id. Plaintiff claims Covello is liable for failure to adequately 18 train other prison staff who are not named as defendants. See id. 19 20 II. DISCUSSION 21 The Court finds that Plaintiff has alleged adequate facts to proceed on his Eighth 22 Amendment excessive force claims against Defendants Rowe, Green, and Landreth. Plaintiff has 23 not, however, alleged adequate facts to sustain a claim against the prison Warden, Defendant 24 Covello. 25 Supervisory personnel are generally not liable under § 1983 for the actions of their 26 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 27 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 28 violations of subordinates if the supervisor participated in or directed the violations. See id. The 1 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 2 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 3 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 4 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 5 personnel who implement a policy so deficient that the policy itself is a repudiation of 6 constitutional rights and the moving force behind a constitutional violation may, however, be 7 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 8 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 9 When a defendant holds a supervisory position, the causal link between such 10 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 11 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 12 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 13 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 14 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 15 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 16 Here, Plaintiff alleges that Defendant Covello is responsible for the improper 17 investigation of a crime because he failed to adequately train or supervise subordinate personnel 18 who are not named as defendants. Because there is no respondeat superior liability under § 1983, 19 this allegation is insufficient to sustain a claim against Defendant Covello, even assuming that 20 improper investigation of a crime constitutes a cognizable claim. Plaintiff will be provided leave 21 to amend. 22 23 III. CONCLUSION 24 Because it is possible that the deficiencies identified in this order may be cured by 25 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 26 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 27 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 28 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 1 || prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 2 || amended complaint must be complete in itself without reference to any prior pleading. See id. 3 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 4 || conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 5 || Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 6 || each named defendant is involved, and must set forth some affirmative link or connection 7 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 8 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 9 Because the complaint appears to otherwise state cognizable claims, if no amended 10 || complaint is filed within the time allowed therefor, the Court will issue findings and 11 || recommendations that the claims identified herein as defective be dismissed, as well as such 12 | further orders as are necessary for service of process as to the cognizable claims. 13 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended 14 | complaint within 30 days of the date of service of this order. 15 16 | Dated: July 27, 2023 SS GC M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10054433. Public record. Not legal advice.