United States District Court, E.D. California
BRIAN C. APPLEGATE, Plaintiff,
PHILIP NKWOCHA, et al., Defendants.
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
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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.
complaint is now before the Court for screening.
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. §
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).
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).
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.
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
allegations may be summarized essentially as follows:
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.
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.
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.
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.
Nkwocha and Garcia covered up the incident with Nkwocha by
not documenting it.
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.
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.
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.
Allegations against Non-Party Garcia
Nkwocha is the only individual named in this action. However,
Plaintiff's complaint contains allegations against
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.
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
Eleventh Amendment Immunity
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.
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.
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