(PC) Nieto v. Lynch

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN MOISES NIETO, No. 2:23-cv-0063 AC P

12 Plaintiff,

13 v. ORDER

14 LYNCH, et al.,

15 Defendants.

16

17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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

19 I. Application to Proceed In Forma Pauperis

20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

21 § 1915(a). ECF Nos. 2, 6. 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 for monthly payments

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

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

1 the 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 II. Complaint

4 A. Statutory Screening of Prisoner Complaints

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).

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

8 “frivolous, malicious, or 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).

10 A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

17 Franklin, 745 F.2d at 1227-28 (citations omitted).

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

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

20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain

28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

1 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

6 content that allows the court to draw the reasonable inference that the defendant is liable for the

7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

12 B. Allegations

13 The complaint alleges that defendants Lynch, Pohovich, Avila, Lujan, and Stewart1

14 violated plaintiff’s rights under the First and Eighth Amendments. ECF No. 1. Plaintiff appears

15 to allege that he set a fire in his cell on October 5, 2021, in an attempt to get a response from

16 officers. Id. at 3. The fire was not serious, and after it was initially ignored by correctional

17 officers, defendant Pohovich responded and ordered that plaintiff’s cell door be opened. Id.

18 Plaintiff asked for a sergeant and said he would cuff up, but another officer opened the door for

19 Pohovich, who then threw a trashcan full of water on plaintiff, causing him to spit at her. Id.

20 Lujan and two other officers then sprayed plaintiff with pepper spray before he was handcuffed,

21 after which he was hit with keys on the right side of his face. Id. at 3-5. Plaintiff was then denied

22 a crisis bed and force fed by officers. Id. at 4. Pohovich, Lujan, and Avila later escorted plaintiff

23 and taunted him during the escort. Id. It is unclear when the escort took place or whether it was a

24 single or multiple escorts. Id. Plaintiff appears to allege that the conduct was retaliatory. Id. at

25 3-5.

26 ////

27

1 Although plaintiff also alleges conduct by other individuals, those individuals are not identified

28 as defendants.

1 C. Failure to State a Claim

2 1. Personal Involvement

3 “Liability under § 1983 must be based on the personal involvement of the defendant,”

4 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d

5 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil

6 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)

7 (citations omitted). Plaintiff does not make any allegations against defendants Stewart and Lynch

8 and therefore fails to state any claims against these defendants.

9 Furthermore, “[t]here is no respondeat superior liability under section 1983,” Taylor v.

10 List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted), and plaintiff has not alleged facts

11 showing either Lynch’s personal involvement in the alleged violations or a causal connection

12 between Lynch’s conduct and the violation, see Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

13 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). It appears that Lynch has

14 been named as a defendant based solely on his position as warden, which is insufficient to state a

15 claim for relief.

16 2. Excessive Force

17 “[W]henever prison officials stand accused of using excessive physical force in violation

18 of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-

19 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

20 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Although plaintiff has alleged facts involving the

21 use of force, the allegations of the complaint are insufficient to demonstrate that any of the named

22 defendants were responsible for that force or that the force they used was excessive. Although

23 plaintiff asserts that Pohovich threw water on him, he also appears to allege that the water was

24 being used to put out a fire that he had started in his cell. It is also unclear what harm plaintiff

25 suffered as a result of being doused with water. Similarly, though plaintiff alleges that Lujan and

26 others sprayed him with pepper spray, he also appears to allege that they sprayed him in response

27 to him spitting at Pohovich. There are no facts regarding whether all three officers sprayed him at

28 once or separately or describing how much Lujan sprayed him.

1 3. Verbal Harassment

2 Plaintiff’s allegation that Pohovich, Lujan, and Avila taunted him while he was being

3 escorted, without more, fails to state a claim for deliberate indifference. See Oltarzewski v.

4 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“[v]erbal harassment or abuse . . . is not sufficient to

5 state a constitutional deprivation under 42 U.S.C. § 1983.” (alteration in original) (citation

6 omitted)); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (stating that “verbal

7 harassment generally does not violate the Eighth Amendment”), amended on other grounds by

8 135 F.3d 1318 (9th Cir. 1998).

9 4. Retaliation

10 In order to state a claim for retaliation, plaintiff must allege facts showing that the

11 defendants took adverse action against him and that they were motivated to do so by conduct of

12 plaintiff’s that was protected by the First Amendment. Rhodes v. Robinson, 408 F.3d 559, 567

13 (9th Cir. 2005) (citation omitted). Although plaintiff indicates that he believes he was subject to

14 retaliation, there are no facts identifying the protected conduct plaintiff engaged in or

15 demonstrating that any defendant was motivated by plaintiff’s protected conduct. Conduct such

16 as setting fires and spitting at officers is not conduct protected by the First Amendment. Plaintiff

17 has therefore failed to state a claim for retaliation against any defendant.

18 D. Leave to Amend

19 The complaint does not state any cognizable claims for relief and plaintiff will be given an

20 opportunity to file an amended complaint. If plaintiff chooses to file an amended complaint, he

21 must demonstrate how the conditions about which he complains resulted in a deprivation of his

22 constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The complaint must also

23 allege in specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs.

24 Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983

25 unless there is some affirmative link or connection between a defendant’s actions and the claimed

26 deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and

27 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v.

28 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

1 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

2 his amended complaint complete. Local Rule 220 requires that an amended complaint be

3 complete in itself without reference to any prior pleading. This is because, as a general rule, an

4 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

5 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

6 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

7 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint,

8 any previous complaints no longer serve any function in the case. Therefore, in an amended

9 complaint, as in an original complaint, each claim and the involvement of each defendant must be

10 sufficiently alleged.

11 III. Motion for Miscellaneous Relief

12 Plaintiff has filed a motion requesting a response from the court, appointment of counsel,

13 and a change of venue for a case he filed in the Fresno division. ECF No. 5. The motion will be

14 granted to the extent the complaint has been screened but will otherwise be denied.

15 Plaintiff’s request to change the venue of his Fresno case will be denied because any such

16 motion must be made in the case he seeks to transfer. Moreover, review of the docket in Nieto v.

17 Gordon, No. 1:20-cv-0291 JLT CDB, reveals that that case was closed on May 15, 2023, after the

18 district judge granted the defendants’ motion for summary judgment. See No. 1:20-cv-0291 JLT

19 CDB, ECF No. 73.

20 With respect to plaintiff’s motion for appointment of counsel, the United States Supreme

21 Court has ruled that district courts lack authority to require counsel to represent indigent prisoners

22 in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

23 exceptional circumstances, the district court may request the voluntary assistance of counsel

24 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

25 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

26 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

27 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

28 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

1 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

2 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

3 most prisoners, such as lack of legal education and limited law library access, do not establish

4 exceptional circumstances that would warrant a request for voluntary assistance of counsel.

5 Plaintiff does not identify any grounds for appointing counsel in this case and therefore

6 has failed to meet his burden of showing the existence of extraordinary circumstances warranting

7 the appointment of counsel. The request will therefore be denied.

8 IV. Plain Language Summary of this Order for a Pro Se Litigant

9 Your request to proceed in forma pauperis is granted. That means you do not have to pay

10 the entire filing fee now. You will pay it over time, out of your trust account.

11 Your complaint will not be served because the facts you alleged are not enough to state a

12 claim. You may amend your complaint to try to fix these problems. Be sure to provide facts that

13 show exactly what each defendant did to violate your rights or to cause a violation of your rights.

14 If you choose to file an amended complaint, it must include all claims you want to bring.

15 Once an amended complaint is filed, the court will not look at any information in the original

16 complaint. Any claims and information not in the amended complaint will not be

17 considered.

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

19 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED.

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

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

22 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

23 appropriate agency filed concurrently herewith.

24 3. Plaintiff’s motion for miscellaneous relief (ECF No. 5) is GRANTED to the extent the

25 court has now screened the complaint and is otherwise DENIED.

26 4. Plaintiff’s complaint fails to state a claim upon which relief may be granted, see 28

27 U.S.C. § 1915A, and will not be served.

28 5. Within thirty days from the date of service of this order, plaintiff may file an amended

1 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

2 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

3 || number assigned this case and must be labeled “First Amended Complaint.” Failure to file an

4 || amended complaint in accordance with this order will result in a recommendation that this action

5 || be dismissed.

6 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

7 || form used in this district.

8 | DATED: October 16, 2023 ~

9 AMhon—Chnne

ALLISON CLAIRE

10 UNITED STATES MAGISTRATE JUDGE

1]

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28