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Fisher v. Felker

March 30, 2009

AL GENE FISHER, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge

ORDER

First Amended Complaint (Dkt. #13)

This matter is before the Court on Plaintiff's First Amended Complaint (Dkt. #13), filed on May 12, 2008.

BACKGROUND

On October 24, 2007, Plaintiff filed his Complaint (Dkt. #1), which was dismissed with leave to amend upon the ground that the Complaint (Dkt. #1) violated Fed. R. Civ. P. 8(a). (See Dkt. #10). The Court found that it was "required to guess who is being sued for what. Plaintiff frequently refers to harms done to him without naming the responsible defendants, and frequently refers to 'staff' rather than specifically named defendants." (Id.) As a result, Plaintiff was given leave to file an amended complaint. (Id.)

As a general rule, an amended complaint supersedes the prior pleading, the latter being treated as non-existent. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Additionally, Local Rule 15-220 requires that an amended complaint must be complete in itself without reference to any prior pleading. Once the amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. Plaintiff filed his First Amended Complaint (Dkt. #13) in response to the Court's dismissal with leave to amend. (Dkt. #10). The Court will now proceed with the screening of the Plaintiff's First Amended Complaint (Dkt. #13) pursuant to 28 U.S.C. §1915A.

In his First Amended Complaint (Dkt. #13), Plaintiff alleges that on January 10, 2007, Defendant F. Shelton violated Plaintiff's Fourth Amendment right to privacy by not notifying Plaintiff that a "female officer" was about to conduct a search of his prison cell. Plaintiff further alleges that Defendant Shelton violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by allowing and witnessing excessive force and assaults upon Plaintiff. On January 10, 2007, Plaintiff alleges that Defendants G. Robertson, Terry Savage, R. Plainer, A. Amero, Smith and Richardson violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by assaulting, using excessive force, spitting, threatening, and verbally assaulting Plaintiff. Plaintiff alleges that he is an American with Disabilities Act ("ADA") inmate with a mobility impaired sign on his cell door. Plaintiff alleges that on April 15, 2007, Defendant W. Hanks violated Plaintiff's Eighth Amendment right by assaulting Plaintiff. Plaintiff alleges that Defendant R.K. Wong violated Plaintiff's Fourteenth Amendment right to due process by granting an "R.V.R. 115 for 'attempted battery on a peace officer.'" Furthermore, Plaintiff alleges that Defendant Wong violated Plaintiff's First Amendment rights by refusing to investigate an officer's misconduct. Plaintiff alleges that Defendant D. Jackson violated Plaintiff's Fourteenth Amendment right by continuously denying Plaintiff's staff misconduct complaints. Plaintiff alleges that Defendant N. Grannis violated Plaintiff's Fourteenth Amendment rights by both denying Plaintiff's right to appeal actions and allowing employees of the prison to deny Plaintiff's right to appeal. Plaintiff alleges that Defendant S.M. Roche violated Plaintiff's Eighth Amendment right by allowing Defendant Roche's staff to neglect Plaintiff's medical complaints and injuries. Plaintiff alleges that Defendant T. Felker deliberately showed indifference and attempted to mislead Plaintiff's family when Defendant Felker refused to do anything regarding the abuses that Plaintiff suffered.

DISCUSSION

I. Fourth Amendment

The Supreme Court has held that "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200 (1984); Somers v. Thurman, 109 F.3d 614, 617 (9th Cir. 1997). Therefore, Plaintiff's allegation that Defendant Shelton violated Plaintiff's right to privacy by not notifying Plaintiff that a "female officer" was about to conduct a search of his prison cell does not constitute a cognizable claim for relief under the Fourth Amendment.

II. Eighth Amendment

A. Infliction of Pain

"The unnecessary and wanton infliction of pain upon incarcerated individuals under color of law constitutes a violation of the Eighth Amendment ..." Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)) (citation, alteration and internal quotation marks omitted). A violation of the Eighth Amendment occurs when prison officials are deliberately indifferent to a prisoner's needs. Toguchi at 1057.

"Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. After incarceration, only the 'unnecessary and wanton infliction of pain,' ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290 (1976)). A prison guard's unjustified striking, beating, or infliction of bodily harm on an inmate violates the Eighth Amendment when it "evince[s] such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. 312 at 321, 106 S.Ct. at 1085. The Ninth Circuit has held that "[p]rison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry." McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878 (1979)). The ...


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