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Harvey v. Flores

United States District Court, Ninth Circuit

July 29, 2013

FREDERICK M. HARVEY, Plaintiff,
v.
A. FLORES, Defendant.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED PLEADING DUE WITHIN THIRTY (30) DAYS

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff Frederick M. Harvey is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on September 14, 2012 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The 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 COMPLAINT

Plaintiff claims that while incarcerated at North Kern State Prison (NKSP), Defendant A. Flores, NKSP Correctional Sergeant, used excessive force against him.

Plaintiff alleges that:

On March 21, 2012 (sic), [1] in front of Building C-1 patio area, while in the prone position, he was struck by Defendant Flores.

The administrative documentation of the incident attached to the complaint suggests the following. Plaintiff and other inmates in Building C-1 became loud and disrespectful. When some of the inmates approached the podium, a corrections officer sounded an alarm. Defendant and other correctional staff responded. Plaintiff was blocking a fire door to Building C-1 and ignored Defendant's order to move away from the door and get down. Defendant struck Plaintiff with his baton. Plaintiff ultimately complied with Defendant's order.

As a result of the incident, Plaintiff was placed in Administrative Segregation. He was charged of conspiracy to commit battery on a peace officer. He was found "not guilty" at serious rules violation proceedings and the charge was dismissed.

Plaintiff seeks monetary damages.

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, 678 (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 667-68.

B. Excessive Force

1. Legal Standard

The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners from the use of excessive physical force. Wilkins v. Gaddy , 559 U.S. 34, 36 (2010); Hudson v. McMillian , 503 U.S. 1, 8-9 (1992). To state an Eighth Amendment claim, a plaintiff must allege that the use of force was "unnecessary and wanton infliction of pain." Jeffers v. Gomez , 267 F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Hudson , 503 U.S. at 9; see also Oliver v. Keller , 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson , 503 U.S. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10.

Whether force used by prison officials was excessive is determined by inquiring if the "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson , 503 U.S. at 6-7. The Court must look at the need for application of force; the relationship between that need and the amount of force applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by prison officials; and any efforts made to temper the severity of the response. See Whitley v. Albers , 475 U.S. 312, 321 (1976). The absence of significant injury alone is not dispositive of a claim of excessive force. See Wilkins , 559 U.S. at 37. "Neither accident nor negligence constitutes cruel and unusual punishment, as [i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.'" Williams v. Ramirez, 2009 WL 1327515, *3 (E.D. Cal. May 12, 2009), quoting Whitley , 475 U.S. at 319.

2. Analysis

Plaintiff alleges that Defendant Flores struck him while he was prone, but fails to provide factual detail sufficient for the Court to determine whether a cognizable claim has been stated. Instead he attaches documents which suggest the force was a reasonable response to Plaintiff's failure to obey an order causing a potential safety risk by blocking a door. Plaintiff needs to explain his actions and interaction with Defendant immediately prior to the application of force and state whether he had complied and was complying with Defendant's orders. He needs to describe the nature, extent and duration of force applied, his response to it, and the extent of injuries caused by its application.

Plaintiff will be given leave to amend this claim. In his amended complaint, Plaintiff should provide facts responsive to the above questions.

V. CONCLUSION AND ORDER

Plaintiff's Complaint does not state a claim for relief under § 1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Lopez v. Smith , 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson , 809 F.2d 1446, 1448-49 (9th Cir. 1987).

If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter... to state a claim that is plausible on its face.'" Id. at 1949, quoting Twombly , 550 U.S. at 555). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002).

Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith , 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on curing the deficiencies set forth above.

Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay , 375 F.2d 55, 57 (9th Cir. 1967). Once an 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. The amended complaint should be clearly and boldly titled "First Amended Complaint", refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly , 550 U.S. at 555.

Based on the foregoing, it is HEREBY ORDERED that:

1. The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint form and (2) a copy of his complaint filed September 14, 2012;
2. Plaintiff's complaint is dismissed for failure to state a claim upon which relief may be granted;
3. Plaintiff shall file an amended complaint within thirty (30) days from service of this order; and
4. If Plaintiff fails to file an amended complaint in compliance with this order, it is recommended that this action be dismissed, with prejudice, for failure to state a claim and failure to prosecute, subject to the "three strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d 1090 (9th Cir. 2011) .

IT IS SO ORDERED.


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