(PC) Freeman v. Dudley

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 KYLE ALEXANDER FREEMAN, No. 2:24-cv-1258 AC P

12 Plaintiff,

13 v. ORDER

14 DUDLEY et al,

15 Defendants.

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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, 7. 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. Statutory Screening of Prisoner Complaints

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).

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

7 “frivolous, malicious, or 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).

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

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

13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

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

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

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

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

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

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

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

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

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

23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11 III. Complaint

12 The complaint sets forth three separate claims for relief and alleges that defendants

13 Dudley, Tardd, Singh, Rivera, Moreno, Hernandez, Jew, Alvares, and Chao violated plaintiff’s

14 rights under the Eighth Amendment. ECF No. 1.

15 In Claim I, plaintiff alleges that on January 28, 2024, he informed defendant Dudley that

16 he was suicidal. In response, Dudley told him to pack his property and move to another cell and

17 began to search through his property “in a hostile way.” Id. at 3. At this point, defendant Tardd

18 handcuffed plaintiff and attempted to escort him out of the cell. Id. When plaintiff attempted to

19 stay in the cell to watch the search, both Dudley and Tardd used “excessive force” to “maliciously

20 cause harm” even though plaintiff was already handcuffed and on the floor, not resisting. Id. As

21 a result of the incident, plaintiff sustained bleeding, abrasions, bruises, and pain. Id. After

22 moving cells, no nurses came to watch plaintiff while on suicide watch. Id.

23 Claim II alleges that plaintiff was taken to emergency medical services following the

24 incident, and defendant Jew and two nurses were in the area.1 Id. at 4. While there, plaintiff’s

25 vitals were not taken “due to the defendants[’] desire of not leaving a paper trail.” Id. He also

26 alleges that defendants wanted him to move around in order to take his vitals, but he was unable

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28 1 Neither nurse is named as a defendant.

1 to move around on the gurney properly as a result of the pain he felt. Id. Plaintiff was then

2 cleared and sent back to his housing even though he had a “medical need, that if left unattended,

3 pose[d] a substantial risk of serious harm.” Id.

4 Finally, in Claim III, plaintiff broadly states that “all defendants” violated his Eighth

5 Amendment rights because their actions “seriously affected [his] health & safety” and that “the

6 use of force caused [him] identifiable harm.” Id. at 5.

7 IV. Failure to State a Claim

8 A. Personal Involvement

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

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

11 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil

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

13 (citations omitted). Plaintiff does not make any allegations regarding the specific actions of

14 defendants Singh, Rivera, Moreno, Hernandez, Alvares, or Chao, and therefore fails to state any

15 claims against these defendants.

16 B. 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 states that Dudley and Tardd

21 maliciously used “excessive force” and “physical contact” in an attempt to harm him, there is no

22 mention of what specific, individual conduct the defendants participated in which constituted this

23 “excessive force.” Conclusory allegations of excessiveness are not sufficient to state a claim.

24 Moreover, plaintiff states that he attempted to stay in the cell despite orders to leave, which

25 supports an inference that at least some force may have been warranted. Accordingly, the facts

26 alleged are insufficient to demonstrate that the force used by Dudley and Tardd was sufficient to

27 rise to the level of an Eighth Amendment violation.

28 ////

1 C. Medical Deliberate Indifference

2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

3 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

4 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff

5 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition

6 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and

7 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal

8 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).

9 Deliberate indifference is established only where the defendant subjectively “knows of and

10 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057

11 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate

12 indifference “may appear when prison officials deny, delay or intentionally interfere with medical

13 treatment.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citation omitted).

14 Although plaintiff alleges that he had a “serious medical need” that needed attention, he

15 does not state what the need was or the harm that it could have caused him. Plaintiff therefore

16 fails to allege sufficient facts to state a claim. Further, plaintiff names defendant Jew as being

17 present at emergency medical services but does not describe any individual action taken by Jew,

18 referring only to action taken by “defendants.” Without any specificity as to what individual

19 action Jew did or did not take that constituted deliberate indifference, plaintiff fails to state a

20 claim against Jew.

21 Plaintiff also alleges that after Dudley moved him to a suicide watch cell, no nurses came

22 by to observe him while on suicide watch. Although the failure to properly supervise plaintiff

23 while on suicide watch states a claim of deliberate indifference, plaintiff fails to identify the

24 defendant responsible for this failure and thus fails to state a claim. Plaintiff makes no allegations

25 showing that Dudley or Tardd’s conduct was the cause of the lack of supervision or otherwise

26 interfered with his medical treatment, and he therefore fails to state a claim against them.

27 ////

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1 V. Leave to Amend

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

3 opportunity to file an amended complaint. If plaintiff chooses to file a first amended complaint,

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

5 constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must

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

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

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

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

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

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

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

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

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

15 , an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th

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

17 (9th Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-

18 pled in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended

19 complaint, the original complaint no longer serves any function in the case. Therefore, in an

20 amended complaint, as in an original complaint, each claim and the involvement of each

21 defendant must be sufficiently alleged.

22 I. Plain Language Summary of this Order for a Pro Se Litigant

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

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

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

26 claim. You must explain and provide specific detail of the individual conduct of each defendant

27 which you believe violated your constitutional rights. It is not enough to claim generally that all

28 defendants violated your rights, or to state only that a defendant used excessive force or ignored

1 | your serious medical need. Instead you must describe each defendant’s specific actions that you

2 || believe were excessively forceful, and describe the medical need or risk of harm they ignored.

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

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

5 If you choose to file a first amended complaint, it must include all claims you want to

6 || bring. Once an amended complaint is filed, the court will not look at any information in the

7 || original complaint. Any claims and information not in the first amended complaint will not

8 | be considered.

9 CONCLUSION

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

11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED.

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

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

14 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

15 || appropriate agency filed concurrently herewith.

16 3. Plaintiffs complaint fails to state a claim upon which relief may be granted, see 28

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

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

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

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

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

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

23 || be dismissed.

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

25 | form used in this district.

26 || DATED: June 25, 2024 Gta A /,

27 ALLISON CLAIRE

3g UNITED STATES MAGISTRATE JUDGE