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Carlos D. Gabarrete v. C.B Hazel

April 2, 2012

CARLOS D. GABARRETE,
PLAINTIFF,
v.
C.B HAZEL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF NO. 10)

AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Carlos D. Gabarrete, a state prisoner proceeding pro se and in forma

pauperis filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Order re Consent, ECF No. 8.)

Plaintiff filed a First Amended Complaint on June 21, 2011 (First Am. Compl., ECF No. 10) without the original Complaint having been screened by the Court. The First Amended Complaint is now before the Court for screening.

II. 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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff alleges:

Defendants discriminated against Plaintiff because he is Mexican and does not speak English. They removed him from his assigned cell on May 28, 2010 and housed him in an unsanitary and cramped holding cage with no bed, water or toilet, pursuant to a policy*fn1 implemented by the Warden. (First Am. Compl. at 9-11.) He complained and soiled himself due to lack of toilet access. (Id. at 9.) Defendants retaliated by pepper spraying, beating and kicking Plaintiff into unconsciousness and denying him medical care for his injuries. (Id. at 10.) He claims violations of the First, Eighth, and Fourteenth Amendments. (Id. at 13-21.)

Plaintiff names as Defendants the following corrections and medical staff at Corcoran State Prison ("CSP") (1) Correctional Officer D. Navarro, (2) Correctional Officer G. Hernandez, (3) Correctional Officer F. Hernandez, (4) Correctional Officer J.D. Finely, (5) Correctional Officer F. Gonzalez, (6) Correctional Officer D. Madsen, (7) Correctional Officer M. Banks, (8) Correctional Sergeant C.B. Hazel, (9) Correctional Sergeant J. Medina, (10) Correctional Sergeant J. Prudhel, (11) Warden Paul Lopez, (12) Chief Medical Officer/Medical Facility Staff Does 1-20. (Id. at 4-8.)

Plaintiff seeks an injunction requiring wall mounted cameras in the Security Housing Unit (SHU) and Administrative Segregation Unit (Ad-Seg) and creation of a use of force investigative unit; criminal charges against Defendants who used excessive force against him; and compensatory, special and punitive monetary damages and costs of suit. (Id. at 21-22.)

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.

B. Personal Participation and Doe Defendants

Under § 1983, Plaintiff must demonstrate that each named Defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 1948. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct, and therefore, Plaintiff must demonstrate that each Defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948--49.

Plaintiff alleges facts of personal participation by Defendant Hazel, who kicked him, and Warden Lopez, who implemented the allegedly discriminatory operational procedure that led to Plaintiff's injuries. However, Plaintiff fails to allege any facts personally linking any other named or Doe Defendants to the alleged rights violations. There are no facts from which the Court might conclude that these Defendants personally participated in the events alleged in Plaintiff's First Amended Complaint. They cannot be held liable based solely upon an allegation of supervisorial responsibility. Plaintiff cannot proceed against these Defendants unless he truthfully alleges how each personally violated, or knowingly directed a violation of his constitutional rights.

"As a general rule, the use of 'John Doe' to identify a defendant is not favored." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). "It is permissible to use Doe defendant designations in a complaint to refer to defendants whose names are unknown to plaintiff. Although the use of Doe defendants is acceptable to withstand dismissal of a complaint at the initial review stage, using Doe defendants creates its own problem: those persons cannot be served with process until they are identified by their real names." Robinett v. Correctional Training Facility, 2010 WL 2867696, at *4 (N.D. Cal. July 20, 2010).

Plaintiff is advised that Doe Defendants cannot be served by the United States Marshal until Plaintiff has identified them as actual individuals and amended his complaint to substitute the Defendants' actual names. The burden remains on Plaintiff to promptly discover the full names of Doe Defendants. Id.

C. Excessive Force

Plaintiff alleges that corrections staff Defendants used, directed, and/or approved the use of excessive force against him in violation of the ...


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