United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF THE ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF [ECF NO. 11]
David Roberts is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's first amended
complaint, filed August 22, 2019.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Court accepts Plaintiff's allegations in the complaint as
true only for the purpose of the sua sponte
screening requirement under 28 U.S.C. § 1915. Plaintiff
is in the custody of the California Department of Corrections
and Rehabilitation. The incidents alleged in the complaint
occurred while he was housed at Kern Valley State Prison.
27, 2018, three officers from the Investigation Services Unit
(“ISU”) took pictures of Plaintiff after he was
beaten up by six to seven officers. In the incident,
Plaintiff sustained a dislocated jaw, swollen nose, busted
lip, fractured cheekbone, broken teeth, gash to his forehead,
and bruises all over his body. Although Plaintiff was
supposed to receive the photographs after he heard from the
district attorney, ISU has not sent him the photographs.
Plaintiff believes that “they” are trying to
cover up his injuries. Plaintiff seeks monetary damages for
trying to cover up evidence of the July 27, 2018 beating. ///
1983 provides a cause of action for the violation of a
plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones, 297 F.3d at 934. Section 1983 does not
provide any substantive rights, but is a statutory vehicle to
provide a remedy for a violation of an individual's
constitutional and federal rights. Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617-18 (1979);
Magana v. Com. of the N. Mariana Islands, 107 F.3d
1436, 1442 (9th Cir. 1997), as amended (May 1, 1997). To
state a claim under section 1983, a plaintiff is required to
show that (1) each defendant acted under color of state law
and (2) each defendant deprived him of rights secured by the
Constitution or federal law. Long, 442 F.3d at 1185.
is no respondeat superior liability under section
1983, and therefore, each defendant is only liable for his or
her own misconduct. Iqbal, 556 U.S. at 677. To state
a claim, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones, 297 F.3d at 934.
Plaintiff alleges that the three officers are trying to cover
up the injuries that he sustained during the July 27, 2018,
incident. However, the only allegations regarding these
officers in the complaint are that they investigated the
incident and took pictures of Plaintiff. Plaintiff has failed
to allege any facts by which that Court can reasonably infer
that these officers violated Plaintiff's federal rights.
In addition, there is no support for Plaintiff's claim
that he has a due process right to receive a copy of the
photographs. See Mancilla v. Biter, No.
1:13-cv-01724-BAM-HC, 2013 WL 6070417, at *6 (E.D. Cal. Nov.
18, 2013) (“there is no legal requirement under federal
law that the prison authorities produce any specific
evidence” at a prison disciplinary hearing);
Crismond v. Sandon, No. CV 12-3572-ODW (VBK), 2013
WL 1759924, at *7 (C.D. Cal. Mar. 26, 2013) (“The
Supreme Court has never recognized a due process right to the
preservation and testing of physical evidence in the prisoner
disciplinary context.”); White v.
Superintendent, No. 3:13 CV 300, 2013 WL 6512671, at *3
(N.D. Ind. Dec. 11, 2013) (“The hearing officer was not
required to produce physical evidence to support the
charge….”); see also Lasko v. Holt, 334
Fed.Appx. 474, 476 (3d Cir. 2009) (“Notably absent from
the Wolff list of due process rights is a
prisoner's right to review all potentially inculpatory
evidence prior to the disciplinary hearing….”);
Napier v. Swarthout, No. 2:12-cv-1521-JAM-DAD P,
2014 WL 1839129, at *10 (E.D. Cal. May 8, 2014).
states that ISU has not sent him the photographs, but
“[t]he Eleventh Amendment bars suits for money damages
in federal court against a state, its agencies, and state
officials acting in their official capacities.”
Aholelei v. Dept. of Public Safety, 488 F.3d 1144,
1147 (9th Cir. 2007); see also Yakama Indian Nation v.
State of Washington, 176 F.3d 1241, 1245 (9th Cir.
1999); Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 54 (1996). Section 1983 did not abrogate Eleventh
Amendment immunity. Carmen v. San Francisco Unified Sch.
Dist., 982 F.Supp. 1396, 1403 (N.D. Cal. 1997),
aff'd, 237 F.3d 1026 (9th Cir. 2001) (citing Quern v.
Jordan, 440 U.S. 332, 341-42 (1979) and Alabama v.
Pugh, 438 U.S. 781, 781-82 (1978)). Additionally,
section 1983 applies to “persons” acting under
color of state law and the Supreme Court has held that
government entities are not “persons” under
section 1983. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). Plaintiff cannot bring a
suit for monetary damages against the ISU.
extent that Plaintiff may be attempting to allege a cover-up
of any excessive force used during the July 27, 2017
incident, such a claim would allege accessory after the fact
liability for excessive force and the court is not aware of
any cases recognizing this sort of liability for a
constitutional violation. See Hutchinson v. Grant,
796 F.2d 288, 291 (9th Cir. 1986) (municipality's alleged
cover up to excuse arrest of plaintiff could not impose
liability for the incident); Lang v. Cty. of Sonoma,
No. C12-0983 TEH, 2012 WL 4674527, at *3 (N.D. Cal. Oct. 2,
2012) (no authority for after the fact accessory liability in
Fourth Amendment claim); Mackey v. Cty. of San
Bernardino, No. ED CV 09-1124-GW SP, 2012 WL 5471061, at
*14 (C.D. Cal. Sept. 28, 2012), report and recommendation
adopted, No. ED CV ...