Applegate v. Nkwocha

          ORDER REQUIRING PLAINTIFF TO EITHER FILE A FIRST AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (ECF No. 1) THIRTY (30) DAY DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. No other parties have appeared in the action.

         Plaintiff's complaint is now before the Court for screening.

         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, 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).

         II. Pleading Standard

         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).

         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 to relief 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 677-78.

         III. Plaintiff’s Allegations

         Plaintiff is incarcerated at Pleasant Valley State Prison but complains of acts that occurred at California Correctional Institution (“CCI”) in Tehachapi, California. He names the following defendants: (1) Philip Nkwocha, (2) the California Department of Corrections and Rehabilitation, and (3) California Correctional Health Care Services (“CCHCS”).

         Plaintiff's allegations may be summarized essentially as follows:

         On December 19, 2015, Plaintiff was en route from the pill line to his cell when Defendant Nkwocha asked Plaintiff why he was not wearing his disability vest. Plaintiff ignored Nkwocha and continued walking. According to Plaintiff, his vest had been confiscated the day before and Nkwocha was aware of this fact. Plaintiff believed Nkwocha was baiting Plaintiff into a conflict due to Nkwocha's frustration with an inmate appeal Plaintiff had filed regarding a cell search conducted by Nkwocha and his partner, non-party Bragdon.^[1]

         Nkwocha ordered Plaintiff to come over and Plaintiff complied. Nkwocha berated Plaintiff, calling him, amongst other things, a “legal beagle” and a “silly Jew.” Nkwocha told Plaintiff to do what Nkwocha said and then told Plaintiff to go home. When Plaintiff arrived to his cell door, Nkwocha stated, “now everybody got to see you break it down.” Plaintiff replied “whatever you say man.” Nkwocha sprinted at Plaintiff and Plaintiff stepped inside his cell and closed the door.

         Nkwocha ordered Plaintiff to cuff up and Plaintiff complied. Nkwocha took Plaintiff to the shower and told him to strip; Plaintiff again complied. Nkwocha sprayed Plaintiff's entire body with pepper spray. Non-party Garcia had turned the water off from the tower, preventing Plaintiff from decontaminating. About an hour later, Nkwocha took Plaintiff from the shower to his cell and stated, “file one of your dumb 602s and next time you'll get the boot motherfucker.” The water also was off in Plaintiff's cell and Plaintiff was unable to decontaminate until the next morning. Plaintiff tried to decontaminate with toilet water and Nkwocha mocked him. Plaintiff experienced pain for several days as a result of the inadequate decontamination.

         As a result of Nkwocha's threats, Plaintiff feared leaving his cell. Plaintiff regularly refused to leave his cell during Nkwocha's watch and therefore missed his medication.

         CDCR, Nkwocha and Garcia covered up the incident with Nkwocha by not documenting it.

         Plaintiff filed a 602 and a mandamus action in state court regarding the processing (or lack thereof) of his inmate appeals at CCI. At some point, Nkwocha told him, “I saw your legal mail crybaby Jew.” Plaintiff alleges claims for “impeding” the exercise of his First and Eighth Amendment rights, retaliation, inadequate medical care, Equal Protection, and state law claims for violation of the Bane Act, intentional infliction of emotional distress, assault, battery, “criminal/terrorist threat, ” and failure to summon medical care.

         He seeks money damages, unspecified declaratory relief, and an injunction requiring the use of body cameras on CDCR officers and the processing of hi s 602s. He asks the Court to take judicial notice of his mandamus petition in the Sacramento Superior Court regarding processing of his 602s.

         IV. Analysis

         A. Judicial Notice

         Plaintiff asks the Court to take judicial notice of pending matters in the Superior Court of California, County of Sacramento. The Court may take judicial notice of court records in other cases. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). However, no such records have been submitted to the Court and the Court will not search the dockets of other courts to find documents that support Plaintiff's case. Fed.R.Evid. 201(c)(2) (“The court . . . must take judicial notice if a party requests it and the court is supplied with the necessary information.”). Plaintiff's request for judicial notice will be denied without prejudice.

         B. Allegations against Non-Party Garcia

         Defendant Nkwocha is the only individual named in this action. However, Plaintiff's complaint contains allegations against non-party Garcia.

         Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant be named in the caption of the complaint. A complaint is subject to dismissal if “one cannot determine from the complaint who is being sued, [and] for what relief. . . .” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As Garcia is not named in the caption, the Court is unable to determine whether Plaintiff intends to proceed against him or her.

         Accordingly, the Court will not herein address allegations against non-party Garcia. If Plaintiff wishes to pursue such allegations, he may amend his complaint and include Garcia in the caption.

         C. Eleventh Amendment Immunity

         Plaintiff names the CDCR and CCHCS as defendants. Plaintiff's attempt to name these state entities as defendants is barred by the Eleventh Amendment. E.g., Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 100 (1984) (suits against the state or its agencies are absolutely barred, regardless of the form of relief sought). Plaintiff cannot state a claim against CDCR or California Correctional Health Care Services. Leave to amend such claims is futile and will be denied.

         D. Eighth Amendment

         The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

         1. Use of ...