United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a former prisoner proceeding pro se, brings this civil rights
action pursuant to 42 U.S.C. § 1983. Pending before the
court is plaintiff's complaint (Doc. 5).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the
plaintiff's claim and the grounds upon which it rests.
See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir.
1996). Because plaintiff must allege with at least some
degree of particularity overt acts by specific defendants
which support the claims, vague and conclusory allegations
fail to satisfy this standard. Additionally, it is impossible
for the court to conduct the screening required by law when
the allegations are vague and conclusory.
complaint, plaintiff alleges that he has been trying to get
treatment for hernias since May 2015. In January 2016, he
started wetting the bed due to his medical condition. He was
then assaulted by an officer and sergeant. This attack began
when he started wetting the bed at 1:00 a.m., then went to
the bathroom/shower to clean up. Defendant Bahaduer pointed a
light at plaintiff's genitals and would not move it.
Plaintiff then went back to his dorm, until he was called to
talk to the sergeant. He was told not to shower again.
Plaintiff told the officers he would not have to if medical
would treat his problem. Defendant Higgons then charged
plaintiff, pushed him, and hit him in the side, and yelled at
him. Defendant Higgons told plaintiff to return to his dorm,
but then ran after plaintiff, yelling, pushing and hitting
plaintiff with his fist.
are several defects in plaintiff's complaint. First, to
state a claim under 42 U.S.C. § 1983, the plaintiff must
allege an actual connection or link between the actions of
the named defendants and the alleged deprivations. See
Monell v. Dep't of Social Servs., 436 U.S. 658
(1978); Rizzo v. Goode, 423 U.S. 362 (1976).
“A person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
§ 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and
conclusory allegations concerning the involvement of official
personnel in civil rights violations are not sufficient.
See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
Cir. 1982). Rather, the plaintiff must set forth specific
facts as to each individual defendant's causal role in
the alleged constitutional deprivation. See Leer v.
Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
it appears plaintiff is upset that he has not received
treatment for his medical condition. While the lack of
medical treatment appears to be simply background
information, if he is trying to state a claim for denial of
medical treatment, he fails to allege sufficient facts and
fails to identify any defendants responsible for his
treatment, or lack thereof. Therefore, the court finds no
viable claim for denial of medical treatment. In addition, as
the lack of treatment is unrelated to the physical assault
claim, if it is plaintiff's intention to raise such a
claim, his medical treatment claim would be properly raised
in a separate action, not this one.
addition, plaintiff names both the California Health Care
Facility and the California Department of Corrections and
Rehabilitation as defendants to this action. However, the
Eleventh Amendment prohibits federal courts from hearing
suits brought against a state both by its own citizens, as
well as by citizens of other states. See Brooks v.
Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053
(9th Cir. 1991). This prohibition extends to suits against
states themselves, and to suits against state agencies.
See Lucas v. Dep't of Corr., 66 F.3d 245, 248
(9th Cir. 1995) (per curiam); Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). A state's agency
responsible for incarceration and correction of prisoners is
a state agency for purposes of the Eleventh Amendment.
See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per
curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99
(9th cir. 1993) (en banc). It does not appear that plaintiff
actually intended to name either of these entities as
defendants, but rather identified them as the location where
the defendants work and he was housed. As these two
defendants are protected by the Eleventh Amendment, plaintiff
cannot maintain an action against them.
the two individual defendants, it appears plaintiff's
main claim is use of excessive force. However, to the extent
plaintiff is attempting to state a claim for harassment or
verbal abuse, no such claim exists. The treatment a prisoner
receives in prison and the conditions under which the
prisoner is confined are subject to scrutiny under the Eighth
Amendment, which prohibits cruel and unusual punishment.
See Helling v. McKinney, 509 U.S. 25, 31 (1993);
Farmer v. Brennan, 511 U.S. 825, 832 (1994). The
Eighth Amendment “embodies broad and idealistic
concepts of dignity, civilized standards, humanity, and
decency.” Estelle v. Gamble, 429 U.S. 97, 102
(1976). Conditions of confinement may, however, be harsh and
restrictive. See Rhodes v. Chapman, 452 U.S. 337,
347 (1981). Nonetheless, prison officials must provide
prisoners with “food, clothing, shelter, sanitation,
medical care, and personal safety.” Toussaint v.
McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison
official violates the Eighth Amendment only when two
requirements are met: (1) objectively, the official's act
or omission must be so serious such that it results in the
denial of the minimal civilized measure of life's
necessities; and (2) subjectively, the prison official must
have acted unnecessarily and wantonly for the purpose of
inflicting harm. See Farmer, 511 U.S. at 834. Thus,
to violate the Eighth Amendment, a prison official must have
a “sufficiently culpable mind.” See id.
of verbal harassment do not state a claim under the Eighth
Amendment unless it is alleged that the harassment was
“calculated to . . . cause [the prisoner] psychological
damage.” Oltarzewski v. Ruggiero, 830 F.2d
136, 139 (9th Cir. 1987); see also Keenan v. Hall,
83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135
F.3d 1318 (9th Cir. 1998). In addition, the prisoner must
show that the verbal comments were unusually gross, even for
a prison setting, and that he was in fact psychologically
damaged as a result of the comments. See Keenan, 83
F.3d at 1092. This includes verbal harassment of a sexual
nature, and exposure. Austin v. Terhune, 367 F.3d
1167, 1171-72 (9th Cir. 2004).
alleges defendant Bahaduer harassed him, verbally and by use
of her light. However, such harassment is insufficient to
state a claim. Similarly, to the extent plaintiff attempts to
state a claim against defendant Higgons for yelling at him or
for the obscenities used, plaintiff cannot state a claim.
While the alleged actions may certainly be inappropriate,
they do not rise to the level of a constitutional violation
and any such claims must be dismissed.
as to the claim against defendant Higgons for use of force,
plaintiff fails to provide sufficient facts to state a claim.
This defect, however, may be curable and plaintiff will be
provided an opportunity to file an amended complaint against
defendant Higgons for use of excessive force. As stated
above, a prison official violates the Eighth Amendment only
when two requirements are met: (1) objectively, the
official's act or omission must be so serious such that
it results in the denial of the minimal civilized measure of
life's necessities; and (2) subjectively, the prison
official must have acted unnecessarily and wantonly for the
purpose of inflicting harm. See Farmer, 511 U.S. at
prison officials stand accused of using excessive force, the
core judicial inquiry is “whether force was applied in
a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v.
Albers, 475 U.S. 312, 320-21 (1986). The
“malicious and sadistic” standard, as opposed to
the “deliberate indifference” standard applicable
to most Eighth Amendment claims, is applied to excessive
force claims because prison officials generally do not have
time to reflect on their actions in the face of risk of
injury to inmates or prison employees. See Whitley,
475 U.S. at 320-21. In determining whether force was
excessive, the court considers the following factors: (1) the
need for application of force; (2) the extent of injuries;
(3) the relationship between the need for force and the
amount of force used; (4) the nature of the threat reasonably
perceived by prison officers; and (5) efforts made to temper
the severity of a forceful response. See Hudson, 503
U.S. at 7. The absence of an emergency situation is probative
of whether force was applied maliciously or sadistically.
See Jordan v. Gardner, 986 F.2d 1521, 1528 ...