Allen v. Booth

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 CHARLES EDWARD ALLEN, Case No.: 20-CV-685 JLS (NLS)

CDCR #D-76353,

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ORDER DISMISSING CIVIL

Plaintiff,

13 ACTION FOR FAILING TO

vs. STATE A CLAIM PURSUANT

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TO 28 U.S.C. §§ 1915(e)(2)(B)(ii)

A. BOOTH, Correctional Officer;

15 AND 1915A(b)(1)

RALPH M. DIAZ, Secretary of the

16 CDCR; W.L. MONTGOMERY, Warden,

(ECF No. 12)

17 Defendants.

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19 On April 8, 2020, Plaintiff Charles Edward Allen, incarcerated at Calipatria State

20 Prison (“CAL”) and proceeding pro se, filed a civil rights Complaint (“Compl.,” ECF No.

21 1) pursuant to 42 U.S.C. § 1983. Plaintiff alleged prison officials violated his First, Eighth,

22 and Fourteenth Amendment rights on August 2, 2019, when Defendant A. Booth, a CAL

23 Correctional Officer, closed a cell door and caused injury to his head and eye. See Compl.

24 at 4, 6‒7.

25 On August 13, 2020, the Court granted Plaintiff’s Motion to Proceed IFP and

26 simultaneously dismissed his Complaint for failing to state a claim upon which relief could

27 be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See ECF No. 11. Plaintiff

28 was provided a short and plain explanation of his pleading deficiencies and granted leave

1 to file an amended complaint to address them. See id. at 6‒11. Specifically, Plaintiff was

2 advised that, to support a Fourteenth Amendment claim against either Secretary Diaz or

3 Warden Montgomery, he must allege facts to show their personal involvement. Id. at 6‒7.

4 The Court further noted that, to allege an Eighth Amendment claim for relief against

5 Defendant Booth, Plaintiff must plead facts sufficiently plausibly to show Booth

6 knowingly closed the cell door with malicious or sadistic intent to cause him harm, or that

7 he did so with deliberate indifference to a substantial risk that Plaintiff would suffer serious

8 injury. Id. at 7‒10. Finally, the Court informed Plaintiff that his Amended Complaint must

9 be complete by itself and that any claim not re-alleged would be waived. Id. at 11.

10 On September 3, 2020, Plaintiff filed his First Amended Complaint (“FAC,” ECF

11 No. 12).

12 SCREENING

13 I. Legal Standard

14 As Plaintiff now knows, because he is a prisoner and is proceeding in forma pauperis

15 (“IFP”), his FAC requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and

16 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP

17 complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks

18 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27

19 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621

20 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of

21 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the

22 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

23 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

24 “The standard for determining whether a plaintiff has failed to state a claim upon

25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

28 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

1 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

2 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

4 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

6 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

7 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

8 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

9 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

10 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

11 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

12 Section 1983 provides a cause of action for the violation of constitutional or other

13 federal rights by those acting under color of state law. See, e.g., Patel v. Kent School Dist.,

14 648 F.3d 965, 971 (9th Cir. 2011); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

15 For each defendant named, Plaintiff must show a causal link between the violation of his

16 rights and an action or omission by that defendant. Iqbal, 556 U.S. at 678–79; Starr v.

17 Baca, 652 F.3d 1202, 1205‒06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th

18 Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may

19 only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at

20 677–79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

21 II. Plaintiff’s Factual Allegations

22 Plaintiff’s First Amended Complaint offers even fewer factual allegations than his

23 original Complaint. He lists Secretary Diaz and Warden Montgomery just below the

24 caption, but does not include either of them in his list of parties, or mention them again in

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1 the body of his amended pleading. In fact, the only factual allegations in the Amended

2 Complaint involve CAL Correctional Officer A. Booth, the Control Booth Officer.1

3 Specifically, Plaintiff re-alleges that, on August 2, 2019, while he was bending over

4 to pick up a food tray during a “cell feed,” Booth closed a cell door on his head. See FAC

5 at 3. Plaintiff again claims Booth was “legally responsible” as the control booth officer on

6 duty at the time, simply “was not paying attention when the incident occurred,” and

7 afterward “acted like he did not have any concern about what he had done to Plaintiff.” Id.

8 at 2‒4. Plaintiff admits he was taken to a hospital after the incident, and claims to have

9 suffered “eye damage,” and to have sustained a concussion. Id. at 3. But he faults Booth

10 for failing to “follow CDC policy,” contends “that is why [he] got hurt,” and claims Booth

11 violated his Eighth Amendment right to be free from cruel and unusual punishment. Id. at

12 3, 4.

13 III. Analysis

14 A. Claims Against Secretary Diaz and Warden Montgomery

15 As noted above, Plaintiff was advised that any claim not re-alleged in his First

16 Amended Complaint would be considered waived because an amended pleading

17 supersedes the original. See ECF No. 11 at 11 (citing Hal Roach Studios, Inc. v. Richard

18 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990); Lacey v. Maricopa Cty., 693 F.3d 896,

19 928 (9th Cir. 2012)). His Amended Complaint mentions Diaz and Montgomery on the first

20 page under the caption in the portion of invoking jurisdiction pursuant to 42 U.S.C. § 1983

21 and 28 U.S.C. § 1343(a), see FAC at 1, but he no longer includes Diaz or Montgomery in

22 his list of parties, and he alleges no facts involving them. See FAC at 2‒4.

23 “[T]he determination of whether or not a defendant is properly in the case hinges

24 upon the allegations in the body of the complaint and not upon his inclusion in the caption.”

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1 While Plaintiff does not explain, “[c]ontrol booth operators coordinate the movement of inmates in and

27 out of their pods as well as the movement of staff entering the pods to provide inmates with food,

medication, security-related assistance.” See Payne v. Senuta, No. C 09-4084 CW PR, 2011 WL 3515900,

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1 Hoffman v. Halden, 268 F.2d 280, 303–04 (9th Cir. 1959), overruled on other grounds by

2 Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). “While the caption of a complaint is helpful

3 to the court it is usually not considered part of the pleader’s statement of claim and is not

4 determinative as to the parties to the action.” Sands v. Ariz. Dep’t of Corr., 909 F.2d 1489,

5 at *2 (9th Cir. 1990); see also Lewis v. Chase Airport Mgmt. Inc., No. 3:19-CV-01152-

6 WQH-NLS, 2020 WL 4697974, at *2 (S.D. Cal. Aug. 13, 2020). Thus, because Plaintiff’s

7 Amended Complaint contains no further mention of Diaz or Montgomery, and the body of

8 his pleading contains no “factual content that allows the court to draw the reasonable

9 inference” as to how or why they may be plausibly held liable for Plaintiff’s injuries, see

10 Iqbal, 556 U.S. at 678; Hoffman, 268 F.2d at 303–04, Plaintiff fails to state a claim against

11 either of them. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Rhodes, 621 F.3d at 1004;

12 Lopez, 203 F.3d at 1126–27.

13 B. Eighth Amendment Claims Against Officer Booth

14 Plaintiff’s First Amended Complaint again cites the Eighth Amendment’s

15 proscription of cruel and unusual punishment as the legal basis for his suit. See FAC at 3.

16 He continues to allege Booth was “not paying attention” when he closed the cell door, and

17 faults him for failing to “follow CDC policy” or show “concern about what he had done”

18 after Plaintiff was injured. Id. at 3, 4. And while he no longer attaches the label “negligent”

19 to Booth’s actions as he did in his original pleading, cf. Compl. at 4, his claims against

20 Booth still sound in negligence, and he offers no new or additional factual allegations to

21 plausibly show Booth acted with the culpable state of mind required to sustain an Eighth

22 Amendment violation. See Wilson v. Seiter, 501 U.S. 294, 302 (1991); Farmer v. Brennan,

23 511 U.S. 825, 834 (1994).

24 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”

25 U.S. Const. Amend. VIII. Only “unnecessary and wanton infliction of pain” constitutes

26 cruel and unusual punishment as prohibited by the United States Constitution. Whitley v.

27 Albers, 475 U.S. 312, 319 (1986). Neither accident nor negligence rises to this level, as

28 “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize

1 the conduct prohibited by the Cruel and Unusual Punishments Clause.” Id.; see also Estelle

2 v. Gamble, 429 U.S. 97, 106 (1976) (“An accident, although it may produce added anguish,

3 is not on that basis alone to be characterized as wanton infliction of unnecessary pain.”).

4 To the extent Plaintiff bases his Eighth Amendment claim on an accusation that

5 Booth used excessive force when closing his cell door, “the core judicial inquiry is . . .

6 whether force was applied in a good-faith effort to maintain or restore discipline, or

7 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).

8 The Court considers the following factors: (1) the need for application of force; (2) the

9 relationship between the need and the amount of force used; (3) the extent of the injury

10 inflicted; (4) the threat “reasonably perceived by the responsible officials”; and (5) “any

11 efforts made to temper the severity of a forceful response.” Id. (citing Whitley, 476 U.S.

12 at 321). “From such considerations inferences may be drawn as to whether the use of force

13 could plausibly have been thought necessary, or instead evinced such wantonness with

14 respect to the unjustified infliction of harm as is tantamount to a knowing willingness that

15 it occur.” Whitley, 475 U.S. at 321.

16 Not “every malevolent touch by a prison guard gives rise to a federal cause of

17 action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of ‘cruel and

18 unusual’ punishments necessarily excludes from constitutional recognition de minimis

19 uses of physical force, provided that the use of force is not of a sort repugnant to the

20 conscience of mankind.” Id. (some internal quotation marks omitted). Here, Plaintiff

21 continues to claim that Booth closed the cell door on his head during the course of the daily

22 cell feeding due to a lack of attention, and that he was injured as a result. But he includes

23 no further factual allegations from which the Court might reasonably infer that Booth did

24 so knowingly, maliciously, or sadistically for the purpose of causing Plaintiff harm. Iqbal,

25 556 U.S. at 678; Hoard v. Hartman, 904 F.3d 780 (9th Cir. 2018) (“[T]he focus is on

26 whether the officer had purpose to cause harm.”) (citing Whitley, 475 U.S. at 321).

27 Nor does Plaintiff allege facts to suggest Booth acted with deliberate indifference to

28 a serious risk to his health or safety. See Farmer, 511 U.S. at 834. Deliberate indifference

1 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety.

2 Id. at 835. It also imposes a subjective test: “the official must both be aware of facts from

3 which the inference could be drawn that a substantial risk of serious harm exists, and he

4 must also draw the inference.” Id. at 837 (emphasis added). Prison officials display

5 deliberate indifference to an inmate’s well-being when they consciously disregard an

6 excessive risk of harm to that inmate’s health or safety. Id. at 837–38. However, not every

7 foreseeable accident constitutes deliberate indifference. Smith v. Silva, No. 1:15-cv-00451-

8 BAM (PC), 2016 WL 8731317, at *3 (E.D. Cal. July 1, 2016) (citing Farmer, 511 U.S. at

9 835); see also Colon v. L.A. Cty. Sheriffs Dep’t, No. 2:18-CV-09727-RAFM, 2019 WL

10 1936228, at *4‒5 (C.D. Cal. May 1, 2019) (dismissing prisoner’s Eighth Amendment

11 claims against a deputy not alleged to have intended to harm the prisoner or to have known

12 that glass in a window would fall and injure him during its repair). And a single, isolated

13 incident causing harm does not equate to an “excessive” or “substantial risk” to inmate

14 safety. See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993)

15 No facts offered in Plaintiff’s First Amended Complaint plausibly suggest Defendant

16 Booth was actually aware Plaintiff faced a substantial risk of injury when Booth closed the

17 cell doors in Facility C Building 3 from his position in the control booth during the

18 August 2, 2019 cell feed. Iqbal, 556 U.S. at 678; Farmer, 511 U.S. at 837; Colon, 2019

19 WL 1936228, at *5. In fact, Plaintiff admits Booth had to be “inform[e]d that he had

20 close[d] a[n] inmate[’s] head up in the cell door” and asked to open the door so Plaintiff

21 “c[ould] get his head out.” See FAC at 3. That an official “should have been aware” of a

22 particular risk to an inmate when he or she acted, but was not, is insufficient to establish

23 an Eighth Amendment violation, “no matter how severe the risk.” Peralta v. Dillard, 744

24 F.3d 1076, 1086 (9th Cir. 2014) (citation and internal quotation marks omitted; emphasis

25 in original).

26 At most, Plaintiff newly alleges Booth failed to “follow CDC policy,” see FAC at 4,

27 but he does not identify what that policy is or what it requires. Nor does he include any

28 factual contentions explaining how Booth’s alleged failure to follow that policy posed an

1 obvious risk to his health or safety. See Farmer, 511 U.S. at 842 (deliberate indifference

2 may be established in cases where the risk is “obvious.”); see also Hollandsworth v. City

3 & Cty. of Honolulu, 440 F. Supp. 3d 1163, 1179 (D. Haw. 2020) (“[T]he failure to enforce

4 a generalized [] policy does not ‘reflect[ ] deliberate indifference to the risk that a violation

5 of a particular constitutional or statutory right will follow the decision.’”) (quoting Bd. of

6 Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 441 (1997)); Ramirez v. Bartos, No.

7 CV 05-2291-PHX-MHM (HCE), 2007 WL 2725246, at *5 (D. Ariz. Sept. 17, 2007)

8 (prison nurse’s failure to follow ADOC administrative policy regarding issuance of

9 prescription sunglasses to inmate did not by itself constitute deliberate indifference).

10 For these reasons, the Court finds Plaintiff’s Eighth Amendment claims against

11 Defendant Booth again require sua sponte dismissal pursuant to 28 U.S.C.

12 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Rhodes, 621 F.3d at 1004; Lopez, 203 F.3d at

13 1126-27.

14 C. Leave to Amend

15 Because Plaintiff has already been provided a short and plain statement of his

16 pleading deficiencies, as well as an opportunity to amend those claims to no avail, the Court

17 finds granting further leave to amend would be futile. See Gonzalez v. Planned

18 Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself,

19 justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845

20 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.

21 2009) (“[W]here the plaintiff has previously been granted leave to amend and has

22 subsequently failed to add the requisite particularity to its claims, [t]he district court’s

23 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted)

24 (second alteration in original)).

25 CONCLUSION

26 For the reasons discussed, the Court DISMISSES this civil action WITHOUT

27 FURTHER LEAVE TO AMEND for failure to state a claim upon which § 1983 relief

28 can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), CERTIFIES

] || that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3),

2 DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the file.

3 IT IS SO ORDERED.

4 ||Dated: September 24, 2020 tt

5 jen Janis L. Sammartino

6 United States District Judge

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