(PC) Calderon v. Covello

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JUAN CARLOS CALDERON, No. 2: 23-cv-2049 KJN P

12 Plaintiff,

13 v. ORDER

14 P. COVELLO, 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 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

19 § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local

20 Rule 302.

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

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

23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

24 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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

26 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

27 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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

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

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

3 U.S.C. § 1915(b)(2).

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

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

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

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

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

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

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

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

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

13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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

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

16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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

18 1227.

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

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

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

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

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

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

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

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

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

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

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

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

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

4 U.S. 183 (1984).

5 Named as defendants are Mule Creek State Prison (“MCSP”) Warden Covello, and MCSP

6 Officer J. Campos. In claim one, plaintiff alleges that on June 7, 2023, defendant Campos threw

7 a T-6 oleoresin capsicum grenade/bomb under plaintiff’s cell door without cause. Plaintiff

8 alleges that defendant Campos waited 20 minutes after throwing the grenade/bomb under

9 plaintiff’s cell door before opening plaintiff’s cell door. Plaintiff alleges that he suffered harm as

10 a result of being exposed to the chemicals released by the grenade/bomb. These allegations state

11 a potentially colorable Eighth Amendment claim against defendant Campos.

12 In claim two, plaintiff alleges that defendant Covello failed to investigate the allegations

13 made by plaintiff in seven other civil rights actions filed by plaintiff in this court and the United

14 States District for the Northern District. Plaintiff may be claiming that defendant Covello’s

15 alleged failure to investigate plaintiff’s other complaints led to the deprivations alleged in claim

16 one of the instant action.

17 “Liability under [§] 1983 arises only upon a showing of personal participation by the

18 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). Therefore,

19 respondeat superior liability may not be imposed upon supervisors for the acts of their

20 subordinates in § 1983 claims. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Taylor, 880 F.2d at

21 1045. “A supervisory official is liable under § 1983 so long as there exists either (1) his or her

22 personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

23 between the supervisor’s wrongful conduct and the constitutional violation.” Rodriguez v. Cty.

24 of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (citations omitted). “The requisite causal

25 connection can be established by setting in motion a series of acts by others or by knowingly

26 refusing to terminate a series of acts by others, which the supervisor knew or reasonably should

27 have known would cause others to inflict a constitutional injury.” Id. (citations omitted). “Thus,

28 a supervisor may be liable in his individual capacity for [1] his own culpable action or inaction in

1 the training, supervision, or control of his subordinates; [2] for his acquiescence in the

2 constitutional deprivation; or [3] for conduct that showed a reckless or callous indifference to the

3 rights of others.” Id. (citations omitted).

4 Plaintiff has not pled facts demonstrating defendant Covello’s liability for defendant

5 Campos’s alleged use of excessive force against plaintiff. Plaintiff does not allege, for example,

6 that defendant Covello knew that defendant Campos had a propensity to use excessive force

7 against inmates or that defendant Covello’s failure to train defendant Campos led to the alleged

8 deprivations.

9 In claim two, plaintiff may also be claiming that defendant Covello’s alleged failure to

10 investigate the claims raised in plaintiff’s other civil rights actions led to other violations of

11 plaintiff’s constitutional rights. In claim two, plaintiff describes these other violations of his

12 constitutional rights as excessive confinement for experimental purposes, hate crimes, invasion of

13 privacy, health problems, denial of health care, etc.

14 Plaintiff has not pled sufficient facts demonstrating that defendant Covello’s alleged

15 failure to investigate his claims in the other civil rights actions led to the alleged deprivations

16 described in claim two. Plaintiff’s descriptions of the alleged deprivations are also vague. For

17 example, plaintiff does not describe the health care he allegedly failed to receive as a result of

18 defendant Covello’s failure to investigate his other civil rights actions. For these reasons, claim

19 two is dismissed.

20 In claim three, plaintiff alleges that the state and federal courts and all “governmental

21 people/officials/prison administrative staff members/CDCR directors” conspired to violate

22 plaintiff’s rights by subjecting plaintiff to the same deprivations alleged in claim two. No

23 defendant is named in connection with claim three. In addition, plaintiff’s description of the

24 alleged deprivations in claim three is vague. For example, as discussed above, plaintiff does not

25 describe the health care he allegedly failed to receive. For these reasons, claim three is dismissed.

26 Plaintiff may proceed forthwith to serve defendant J. Campos and pursue claim one

27 against only that defendant or he may delay serving any defendant and attempt to cure the

28 pleadings defects discussed above.

1 If plaintiff elects to attempt to amend his complaint to state a cognizable claim as to

2 claims two and three, he has thirty days in which to do so. He is not obligated to amend his

3 complaint.

4 If plaintiff elects to proceed forthwith against defendant J. Campos, against whom he has

5 stated a potentially cognizable claim for relief, he shall return the attached notice within thirty

6 days. Following receipt of that notice, the court will order service of defendant J. Campos.

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

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

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

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

11 have fair notice of the claims plaintiff is presenting.

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

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

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

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

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

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

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

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

20 of a specific federal constitutional right.

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

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

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

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

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

26 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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

28 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23 A claim has facial plausibility when the plaintiff pleads factual

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

24 defendant is liable for the misconduct alleged. The plausibility

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

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

Where a complaint pleads facts that are merely consistent with a

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

plausibility of entitlement to relief.

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

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

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

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

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

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

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

7 pleading is superseded.

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

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

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

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

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

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

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

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

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

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

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

19 uncovered in the review promised by the department.

20 Accordingly, IT IS HEREBY ORDERED that:

21 1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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

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

24 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

25 Director of the California Department of Corrections and Rehabilitation filed concurrently

26 herewith.

27 3. Claims two and three are dismissed with leave to amend. Within thirty days of service

28 of this order, plaintiff may amend his complaint to attempt to cure the pleadings defects as to

1 | claims two and three. Plaintiff not obliged to amend his complaint.

2 4. The allegations in claim one are sufficient to state a potentially cognizable claim

3 || against defendant J. Campos. See 28 U.S.C. § 1915A. If plaintiff opts to proceed on his original

4 || complaint as to defendant J. Campos, he shall return the attached notice within thirty days of

5 || service of this order.

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

7 || dismissed.

8 || Dated: October 11, 2023

Foci) Aharon

10 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 JUAN CARLOS CALDERON, No. 2: 23-cv-2049 KJN P

12 Plaintiff,

13 v. NOTICE

14 P. COVELLO, et al.,

15 Defendants.

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17 Plaintiff opts to proceed with the original complaint as to claim one against

18 defendant J. Campos. Plaintiff consents to the dismissal of claims two and three without

19 prejudice. ______

20 OR

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

22 DATED:

23 _______________________________

Plaintiff

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