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Howard v. Virga

United States District Court, E.D. California

March 31, 2014

TIME V. VIRGA, et al., Defendants.


DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. In Forma Pauperis Application

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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 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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989); Franklin v. Murphy , 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke , 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona , 885 F.2d 639, 640 (9th Cir. 1989); Franklin , 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic , 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen , 395 U.S. 411, 421 (1969).

The court finds that the allegations of plaintiff's complaint are so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. Moreover, plaintiff's complaint does not contain a short and plain statement as required by Fed.R.Civ.P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency , 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity the overt acts which defendants engaged in that support his the claimed violations of his rights. Id . Because plaintiff has failed to comply with the requirements of Federal Rule of Civil Procedure 8(a)(2), the complaint must be dismissed. The court will, however, grant plaintiff leave to file an amended complaint if he wishes to attempt to proceed with this action and will provide him with the legal standards governing the claims it appears he is attempting to bring.

III. Retaliation

It is well-established that prison inmates have a constitutional right to freedom from retaliation for engaging in activity protected by the First Amendment, including pursuing "civil rights litigation in the courts.'" Rhodes v. Robinson , 408 F.3d 559, 566 (9th Cir.2005) (quoting Schroeder v. McDonald , 55 F.3d 454, 461 (9th Cir.1995)). A retaliation claim brought by a prisoner plaintiff has five elements. First, plaintiff must allege and show that he engaged in conduct protected by the First Amendment. See Watison v. Carter , 668 F.3d 1108, 1114 (9th Cir.2012). Second, a "plaintiff must claim that the defendant took adverse action against the plaintiff." Id . (citing Rhodes , 408 F.3d at 567). "The adverse action need not be an independent constitutional violation." Id . (citing Pratt v. Rowland , 65 F.3d 802, 806 (9th Cir.1995). Third, plaintiff must allege and show a causal connection between the protected conduct and the adverse action. Id . Fourth, the plaintiff must allege and prove either a chilling effect on the exercise of First Amendment rights or some other harm. Id . Finally, plaintiff must allege and show that the retaliatory action "did not advance legitimate goals of the correctional institution.'" Id . (quoting Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir.1985)).

In his complaint, plaintiff alleges that he suffered retaliation when he was removed from single-cell status on July 24, 2012. However, plaintiff does not allege facts explaining what protected conduct he claims he was engaged in that resulted in the alleged retaliation. Plaintiff also has not alleged facts showing a causal link between his protected conduct and the alleged retaliatory action. In addition, in his complaint plaintiff has not made any allegations addressing whether the alleged retaliatory action of the defendants advanced any legitimate correctional goals.

IV. Eighth Amendment

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers , 475 U.S. 312, 319, (1986). See also Ingraham v. Wright , 430 U.S. 651, 670 (1977); Estelle v. Gamble , 429 U.S. 97, 105-06 (1976). 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." Whitley , 475 U.S. at 319.

What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian , 503 U.S. 1, 5 (1992) (citing Whitley , 475 U.S. at 320). It is well established that "prison officials have a duty... to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan , 511 U.S. 825, 833 (1994). "Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offense against society.'" Id. at 834. However, prison officials do not incur constitutional liability for every injury suffered by a prisoner at the hands of another prisoner. Id.

To prevail on such a claim the plaintiff must allege and prove that objectively he suffered a "sufficiently serious" deprivation. Farmer , 511 U.S. at 834; Wilson v. Seiter , 501 U.S. 294, 298-99 (1991). The plaintiff must also allege facts showing that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Farmer , 511 U.S. at 834. In this regard, a prison official violates the Eighth Amendment "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. Under this standard, a prison official must have a "sufficiently culpable state of mind, " one of deliberate indifference to the inmate's health or safety. Id.

In his complaint plaintiff alleges that he should have remained on single-cell status because he had a "history of inside cell violent acts" and had retained single-cell status since 2002. (ECF No. 1 at 4.) Plaintiff also alleges that on January 3, 2013, approximately five months after he lost the single-cell status, "a violent act occured [sic] with a weapon[.]" (Id.) According to exhibits attached by plaintiff to his complaint, plaintiff was found guilty of battery on his cell mate as a result of this incident. ( Id., "Disposition" at 30.) That disciplinary decision cited to confidential information which indicated that plaintiff attacked his cell mate in order to re-obtain single-cell status. (Id.)

In his amended complaint, plaintiff must address the objective and subjective elements with respect to any Eighth Amendment claim he is attempting to present. If he elects to file an amended complaint, plaintiff may wish to allege facts explaining why he is unable to be safely housed with other inmates. In addition, plaintiff is advised to allege facts demonstrating that each named defendant was aware that plaintiff faced a substantial risk of serious harm but failed to act to prevent that harm.

V. Amended Complaint

If plaintiff chooses to file an amended complaint, plaintiff must allege facts demonstrating how the conditions complained of resulted in a deprivation of his federal constitutional or statutory rights. See Ellis v. Cassidy , 625 F.2d 227 (9th Cir. 1980). Any amended complaint must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode , 423 U.S. 362 (1976); May v. Enomoto , 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents , 673 F.2d 266, 268 (9th Cir. 1982).

Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay , 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading 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.

VI. Conclusion

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

1. Plaintiff's August 19, 2013 request for leave to proceed in forma pauperis (ECF No. 6) is granted;

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith;

3. Plaintiff's complaint filed July 26, 2013, is dismissed;

4. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint"; plaintiff must use the form complaint provided by the Clerk of the Court; failure to file an amended complaint in accordance with this order will result in this action being dismissed without prejudice; and

5. The Clerk of the Court is directed to provide plaintiff with the court's form complaint for a section 1983 action.

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