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Gallow v. Smith

January 30, 2009

LUCRETIA GALLOW, PLAINTIFF,
v.
T. SMITH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 5) RESPONSE DUE WITHIN THIRTY DAYS

Plaintiff Lucretia Gallow ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original complaint to this action on September 4, 2007. Plaintiff filed an amended complaint on December 23, 2008. Plaintiff is incarcerated with the California Department of Corrections and Rehabilitation at Valley State Prison for Women in Chowchilla, California. Plaintiff is suing under 42 U.S.C. § 1983. Although she does not specifically state which constitutional rights were violated, they appear to arise from the Cruel and Unusual Punishments Clause of the Eighth Amendment. Plaintiff names Sergeant Smith, Captain Donaldson, and Correctional Officers Dutcher, Moore and Cole as defendants.

I. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

A. Facts

Plaintiff alleges that she was physically abused by correctional officers while being housed in administrative segregation. Plaintiff was being escorted back to her cell by correctional officer Hernandez when Defendants Smith, Cole, and Moore approached her and stated that she had to go to a holding cell to speak with the sergeant. Defendants Smith, Cole and Moore then forcefully dragged Plaintiff to the shower. Defendants Cole and Moore slammed the shower door on Plaintiff's right leg. Plaintiff requested medical attention but defendants refused to provide it.

B. Plaintiff's Amended Complaint

This action proceeds on Plaintiff's amended complaint filed on December 23, 2008. Plaintiff is advised that an amended complaint supercedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In other words, it must be complete in itself without reference to the original complaint. Local Rule 15-220. It is not treated as an addendum to the original complaint. Claims raised in the original complaint must be completely raised again in the amended complaint or they will be lost. King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

Plaintiff filed her amended complaint on December 23, 2008. Although her amended complaint and her original complaint list some of the same defendants, the facts refer to two separate incidents. However, on the complaint form under the section regarding "Previous Lawsuits", she states that she has two previous lawsuits and lists this same action as a prior lawsuit that "is still pending". (Compl. 1). In her original complaint, she states that she only has one previous lawsuit. Thus it is unclear if Plaintiff intended this amended complaint to be an entirely separate action, intended to add claims to her prior action, or if she intended her amended complaint to supercede her original complaint and drop her original claims. Pursuant to this order, Plaintiff will be given an opportunity to amend her complaint. If Plaintiff opts to amend, she must fully state all of her claims in her new complaint. She may not refer to prior, superceded complaints.

C. Eighth Amendment Claim - Excessive Force

Plaintiff states claims that arise from violations of rights secured by the Eighth Amendment of the U.S. Constitution. The Eighth Amendment prohibits the imposition of cruel and unusual punishments and "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). A prison official violates the Eighth Amendment only when two requirements are met: (1) the objective requirement that the deprivation is "sufficiently serious", Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991), and (2) the subjective requirement that the prison official has a "sufficiently culpable state of mind", Id. (quoting Wilson, 501 U.S. at 298). The objective requirement that the deprivation be "sufficiently serious" is met where the prison official's act or omission results in the denial of "the minimal civilized measure of life's necessities". Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective requirement that the prison official has a "sufficiently culpable state of mind" is met where the prison official acts with "deliberate indifference" to inmate health or safety. Id. (quoting Wilson, 501 U.S. at 302-303).

Where prison officials are accused of using excessive physical force, the issue is "'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320-321 (1986)). Factors relevant to the analysis are the need for the application of force, the relationship between the ...


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