(PC) Hamilton v. Ables

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DAVID HAMILTON, No. 2:23-cv-0050 DB P

12 Plaintiff,

13 v. ORDER

14 L. ABLES et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

18 U.S.C. § 1983. Plaintiff claims defendants used excessive force against him in violation of his

19 Eighth Amendment rights. Presently before the court is plaintiff’s complaint (ECF No. 12) for

20 screening. For the reasons set forth below, the undersigned will give plaintiff the option to

21 proceed with the complaint as screened or file an amended complaint.

22 SCREENING

23 I. Legal Standards

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

25 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

27 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

2 U.S.C. § 1915A(b)(1) & (2).

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

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

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

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

7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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

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

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

12 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

13 (1957)).

14 However, in order to survive dismissal for failure to state a claim a complaint must

15 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

16 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

17 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

18 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

19 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

20 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

21 The Civil Rights Act under which this action was filed provides as follows:

22 Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the deprivation

23 of any rights, privileges, or immunities secured by the Constitution .

. . shall be liable to the party injured in an action at law, suit in equity,

24 or other proper proceeding for redress.

25 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at

26 389. The statute requires that there be an actual connection or link between the

27 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

28 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

1 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

2 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

3 omits to perform an act which he is legally required to do that causes the deprivation of which

4 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

5 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

6 their employees under a theory of respondeat superior and, therefore, when a named defendant

7 holds a supervisorial position, the causal link between him and the claimed constitutional

8 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

9 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

10 concerning the involvement of official personnel in civil rights violations are not sufficient. See

11 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

12 II. Allegations in the Complaint

13 The events giving rise to the claim occurred while plaintiff was incarcerated by the

14 California Department of Corrections and Rehabilitation (“CDCR”) housed at Mule Creek State

15 Prison (“MCSP”). (ECF No. 12 at 1.) Plaintiff has identified the following defendants: (1) L.

16 Ables, correctional officer at MCSP and (2) Patrick Covello, MCSP warden. (Id. at 2.)

17 Plaintiff alleges that on January 13, 2021, officer Ables shot him in the temple on the right

18 side of his head. (Id. at 3.) He further alleges this occurred while Ables was firing two 40 mm

19 rounds at two Latino inmates who were down the stairs fight between cells # 145 and # 146. (Id.)

20 Plaintiff states that when this occurred, he was sitting in front of his cell which was # 248.

21 Plaintiff further states that he was not involved in the altercation. (Id.) Plaintiff alleges that in

22 her incident report, Ables stated that she was unable to identify the parties she was shooting at.

23 (Id.)

24 Plaintiff states warden Covello “is liable because [plaintiff] was uninvolved in the incident

25 which took place downstairs . . . He and Ables had a duty of care to protect [plaintiff] . . . and

26 warden Covello failed to properly train Ables. (Id. at 4.) He further states that warden Covello

27 “set the express policy which caused” the violation of plaintiff’s rights and Covello’s policies and

28 customs were the direct causal link and moving force in the alleged deprivations. (Id.) He argues

1 that this can be shown through his incident and other previous incidents of uninvolved victims of

2 excessive force shooting where tower officers with guns were inadequately trained, not

3 investigated, or not disciplined. He alleges there is a pattern of excessive force, illegal shootings

4 at MCSP. (Id.) He further alleges that Ables was not disciplined and was promoted to sergeant.

5 III. Does Plaintiff State a Claim under § 1983?

6 A. Excessive Force

7 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

8 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

9 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

10 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

11 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

12 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

13 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

14 “When prison officials use excessive force against prisoners, they violate the inmates’

15 Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298

16 F.3d 898, 903 (9th Cir. 2002). To establish a claim for excessive force, the plaintiff must show

17 that the officer applied the force maliciously and sadistically to cause harm rather than in a good-

18 faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6 (1992).

19 However, “[not] every malevolent touch by a prison guard gives rise to a federal cause of

20 action.” Id. at 9 (citation omitted). That is, “[n]ot every push or shove . . . violates a prisoner’s

21 constitutional rights.” Id. (citation omitted). “The Eighth Amendment’s prohibition of ‘cruel and

22 unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of

23 physical force, provided that the use of force is not of a sort repugnant to the conscience of

24 mankind.” Id. at 9-10 (citation and quotation omitted). Furthermore, “prison administrators . . .

25 should be accorded wide-ranging deference in the adoption and execution of policies and

26 practices that in their judgment are needed to preserve internal order and discipline and to

27 maintain institutional security.” Id. at 6 (ellipses in original) (citation omitted).

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1 “Where a prison security measure is undertaken to resolve a disturbance . . . that

2 indisputably poses significant risks to the safety of inmates and prison staff, we think the question

3 whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns

4 on whether force was applied in good faith effort to maintain or restore discipline or maliciously

5 and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21 (citation and

6 internal quotations marks omitted).

7 Here, plaintiff has alleged that he was struck with a 40 mm round while he was sitting on

8 the floor by his cell on the second floor while officer Ables was attempting to stop a fight

9 between two inmates on the first floor. (ECF No. 12 at 3.) Liberally construed, such allegations

10 are sufficient to state a potentially cognizable excessive force claim against defendant Ables.

11 McMillian v. Delgado, No. 1:19-cv-00444 SAB (PC), 2019 WL 1599443, at *2 (E.D. Cal. Apr.

12 19, 2019) (finding allegation to that plaintiff was struck by a 40 mm round even though he was

13 not involved in the right and prone-out on the floor away from the incident sufficient to state an

14 excessive force claim).

15 B. Supervisory Liability

16 Under § 1983, liability may not be imposed on supervisory personnel for the actions or

17 omissions of their subordinates under the theory of respondeat superior. Ashcroft v. Iqbal, 556

18 U.S. 662, 677 (2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010),

19 overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir.

20 2016); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297

21 F.3d 930, 934 (9th Cir. 2004). “A supervisor may be liable only if (1) he or she is personally

22 involved in the deprivation, or (2) there is a sufficient causal connection between the supervisor’s

23 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th

24 Cir. 2013) (internal quotation marks and citations omitted); Lemire v. California Dept. of Corr.

25 and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013). “Under the latter theory, supervisory

26 liability exists even without overt personal participation in the offensive act if supervisory

27 officials implemented a policy so deficient that the policy itself is a repudiation of constitutional

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1 rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing

2 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).

3 When a named defendant holds a supervisorial position, the causal link between the

4 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

5 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

6 1978), cert. denied, 442 U.S. 941 (1979). Plaintiff must allege some facts indicating that the

7 defendant either: personally participated in the alleged deprivation of constitutional rights; knew

8 of the violations and failed to act to prevent them; or promulgated or “implemented a policy so

9 deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of

10 the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal

11 citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

12 The allegations in the complaint fail to state a cognizable claim against warden Covello.

13 As plaintiff was previously advised, in order to state a claim against supervisory defendants, the

14 complaint must state facts showing that the defendant personally participated in the alleged

15 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

16 promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of

17 constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black,

18 885 F.2d at 646. Although federal pleading standards are broad, some facts must be alleged to

19 support claims under § 1983. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163,

20 168 (1993).

21 Plaintiff has alleged Covello was responsible because he failed to train Ables, and was

22 responsible for the policy, but has not identified any specific policy that led to the violation of his

23 rights. (Id. at 4.) “Threadbare recitals of the elements of a cause of action, supported by mere

24 conclusory statements” are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678

25 (2009). Additionally, he has stated there have been other similar incidents at MCSP. Plaintiff has

26 indicated one incident occurred on the yard and involved officers in the tower and stated he

27 observed another in the kitchen sometime prior to the COVID-19 epidemic. (Id.) These

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1 seemingly isolated incidents fail to show that some underlying policy caused the alleged rights

2 violation.

3 Additionally, plaintiff’s allegation that Covello failed to investigate Ables is insufficient

4 to state a claim. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) “[W]e

5 can find no instance where the courts have recognized inadequate investigation as sufficient to

6 state a civil rights claim unless there was another recognized constitutional right involved.”);

7 Page v. Stanley, No. CV 11-2255 CAS (SS), 2013 WL 2456798, at *8-9 (C.D. Cal. June 5, 2013)

8 (dismissing § 1983 claim alleging officers failed to investigate plaintiff’s claims because plaintiff

9 “had no constitutional right to any investigation of his citizen’s complaint, much less a ‘thorough’

10 investigation or a particular outcome”).

11 D. Failure to Train

12 A failure to train theory can be the basis for a supervisor’s liability in a § 1983 action in

13 only limited circumstances, such as where the failure amounts to deliberate indifference. See

14 City of Canton v. Harris, 489 U.S. 378, 387-90 (1989). In order to impose liability for failure to

15 train, a plaintiff must state facts showing that “in light of the duties assigned to specific officers or

16 employees, the need for more or different training is obvious, and the inadequacy so likely to

17 result in violations of constitutional rights, that the policy-makers . . . can reasonably have been

18 said to have been deliberately indifferent to the need.” Clement v. Gomez, 298 F.3d 898, 905

19 (9th Cir. 2002).

20 Plaintiff has alleged that warden Covello failed to properly train officer Ables. (ECF No.

21 12 at 4.) This conclusory statement is not sufficient to state a potentially cognizable claim. In

22 any amended complaint, plaintiff should include additional allegations explaining the specific

23 training inadequacy that caused him to be harmed.

24 AMENDING THE COMPLAINT

25 As set forth above, the complaint contains a potentially cognizable claim against officer

26 Ables but does not contain any additional claims. Accordingly, plaintiff may, but is not required

27 to, file an amended complaint. Plaintiff is advised that in an amended complaint he must clearly

28 identify each defendant and the action that defendant took that violated his constitutional rights.

1 The court is not required to review exhibits to determine what plaintiff’s charging allegations are

2 as to each named defendant. The charging allegations must be set forth in the amended

3 complaint, so defendants have fair notice of the claims plaintiff is presenting. That said, plaintiff

4 need not provide every detailed fact in support of his claims. Rather, plaintiff should provide a

5 short, plain statement of each claim. See Fed. R. Civ. P. 8(a).

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

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

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

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

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

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

12 he is legally required to do that causes the alleged deprivation).

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

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

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

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

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

18 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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

20 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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

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

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

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

25 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.

26 Any amended complaint should contain all of the allegations related to his claim in this action. If

27 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended

28 complaint.

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

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

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

4 CONCLUSION

5 For the reasons set forth above, IT IS HEREBY ORDERED that:

6 1. Plaintiffs amended complaint (ECF No. 12) states potentially cognizable excessive

7 || force claim against defendant Ables as set forth in Section III above. The complaint does not

8 | contain any additional cognizable claims. Accordingly, plaintiff will have the option to proceed

9 || with the complaint as screened or amend the complaint.

10 2. Within thirty (30) days from the date of this order, plaintiff shall fill out and return the

11 || attached form indicating how he would like to proceed in this action.

12 3. Failure to comply with this order will result in a recommendation that this action be

13 || dismissed.

14 || Dated: November 3, 2023

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M BORAH BARNES

18 UNITED STATES MAGISTRATE JUDGE

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DB/DB Prisoner Inbox/Civil Rights/S/hami0050.scrn2

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7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

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10 DAVID HAMILTON, No. 2:23-cv-0050 DB P

11 Plaintiff,

12 v. NOTICE OF ELECTION

13 L. ABLES et al.,

14 Defendants.

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Check one:

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_____ Plaintiff wants to proceed immediately on his excessive force claim against defendant

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Ables. Plaintiff understands that by going forward without amending the complaint he is

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voluntarily dismissing all other claims.

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_____ Plaintiff wants to amend the complaint.

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DATED:_______________________

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David Hamilton

Plaintiff pro se

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