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Bush v. Butte County Sheriff's Office

United States District Court, E.D. California

July 10, 2017

JOSHUA MARCUS BUSH, Plaintiff,
v.
BUTTE COUNTY SHERIFF'S OFFICE, Defendant.

          ORDER

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner incarcerated under the authority of the California Department of Corrections and Rehabilitation (CDCR). At the present time, plaintiff is being held at the Butte County Jail pending state court appearances in July 2017. In the instant action, plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

         This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons set forth below, the court grants petitioner's request to proceed in forma pauperis; screens plaintiff's complaint pursuant to 28 U.S.C. § 1915A; notifies plaintiff of the deficiencies in his complaint; and dismisses the complaint with leave to file a First Amended Complaint within thirty days. In addition, the court denies plaintiff's request for appointment of counsel, and plaintiff's request that this case proceed as a class action.

         II. In Forma Pauperis Application

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis, ECF No. 16, will be granted.

         Plaintiff is still required to pay the statutory filing fee of $350.00 for this action. See 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).

         III. Screening of Complaint Pursuant to 28 U.S.C. § 1915A

A. Legal Standards for Screening a Prisoner Civil Rights Complaint

         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, ” fail to state a claim upon which relief may be granted, or 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 dismiss a claim as frivolous when 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 pled, has an arguable legal and factual basis.

         A district court must construe a pro se pleading liberally to determine if it states a potentially cognizable claim. However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). While detailed factual allegations are not required, “[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 Corporation 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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. Rule 8 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.” Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation marks omitted).

         A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         B. Plaintiff's Allegations

         Plaintiff has filed a complaint, ECF No. 1, and several separate and extensive supporting documents, see e.g., ECF Nos. 12, 15, 17, 21. Plaintiff has also filed several notices concerning the processing of his legal mail, accessibility to the law library and copying services, and communications with other inmates concerning this case. See e.g., ECF Nos. 11, 18, 20. The court has reviewed all documents filed by plaintiff.

         The 32-page complaint consists of a 6-page form complaint; plaintiff's 10-page affidavit; and 16 pages of exhibits. The only named defendants are the “Butte County Sherriffs Office” and the “Butte County Sherriff” (sic). ECF No. 1 at 1-2. The complaint identifies three claims: the first and third claims are designated “to be determined;” the second claim is designated “Eighth Amendment;” the claims generally reference the attached documents. The identified injuries are “psychological distress” (claim one); “emotional distress, etc.” (claim two); and “physical discomfort, emotional duress, psychological distress, etc.” (claim three). The comprehensive requested relief provides in full, id. at 6 (sic):

I would like change in policy and practices to be implemented immediately and I am seeking compensation for harassment, emotional duress/distress, and would like all officers/deputies to be thoroughly re-educated on cross-contamination and all Health and Safety regulations related to all Correctional facillities. I would also like the officers whom I can show undermined the legal and proffessional processes I have attempted to utilize to be removed from their employment at the facillity in question.

         Plaintiff's affidavit and exhibits indicate that plaintiff has attempted, through the jail grievance process, to obtain resolution of several matters and conditions allegedly impacting the health and safety of plaintiff and other inmates at the jail. Plaintiff has challenged health and safety conditions in the kitchen, serving hall, and day room; and he has alleged specific unsanitary conditions and practices involving general maintenance, food service, and personal hygiene. It appears, generally, that plaintiff's grievances were responded to, including the issuance of instructions to jail staff regarding how to maintain and/or improve some of the challenged conditions. Plaintiff complains that these responses consist of lies and misrepresentations. These matters appear generally to be encompassed by plaintiff's claim one, wherein plaintiff identifies the “issue” as “Health and Safety/Sanitary Conditions.”

         Plaintiff also appears to be challenging, apparently in claim two, his medical and custodial treatment following an injury to his jaw in August 2016. It appears that plaintiff slipped on a wet floor, injuring his jaw, on August 12, 2016. Initially, medical staff allegedly discounted plaintiff's injury and prescribed only ibuprofen. Plaintiff was again evaluated on August 13, 2016, when the attending nurse pressed and allegedly separated plaintiff's jaw bone, then sent him to the hospital ER for imaging and surgery. Plaintiff complains that, after his return to jail, he was not consistently provided a single cell as ordered by his surgeon. Plaintiff alleges that his insistence on a single cell and his repeated moves resulted, inter alia, in two correctional officers “ramm[ing] my face into the cell wall, resulting in the breaking of 3 of the wires that were supposed to hold my jaw wired shut.” ECF No. 1 at 12. Plaintiff also alleges that he was not consistently provided a liquid diet, initially upon his request immediately following his injury, and then as ordered by his surgeon.

         The undersigned is unable to determine from the complaint and exhibits the basis of plaintiff's third claim, and therefore disregards it.

         C. Screening of Plaintiff's Complaint

         Liberally construing the complaint, it appears that plaintiff is attempting to state two Eighth Amendment claims: in Claim One, the deliberate indifference to plaintiff's health and safety based on the allegedly unsanitary conditions at Butte County Jail; in Claim Two, the deliberate indifference to plaintiff's serious medical needs. In addition, in Claim Two, plaintiff's allegations appear to support a potentially cognizable Eighth Amendment claim for excessive force.

         The court addresses the requirements and shortcoming of each of these claims as currently framed. However, the court first addresses general deficiencies in the complaint concerning the named defendants, plaintiff's alleged injuries and requested relief, and plaintiff's challenges to the jail's grievance system.

         1. General Deficiencies in the Complaint

         Plaintiff is informed that “Section 1983 imposes civil liability upon an individual who ‘under color [of state law] . . . subjects or causes, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.” Franklin v. Fox, 312 F.3d 423, 444 (9th Cir.2002) (quoting 42 U.S.C. § 1983). “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.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

         “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of [S]ection 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); see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (“The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”) (citations omitted.) A complaint that fails to state the specific acts of defendant that allegedly violated plaintiff's rights fails to meet the notice requirements of Rule 8(a). Hutchinson v. United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982).

         a. Defendants

         The named defendants in the complaint are the “Butte County Sherriffs Office” and the “Butte County ...


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