(PC) Perryman v. Baughman

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DAVID PERRYMAN, No. 2:21-cv-0337 KJN P 12 Plaintiff, 13 v. ORDER 14 DEPARTMENT OF CORRECTIONS, et al., [15] Defendants. [16] 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights 19 complaint under 42 U.S.C. § 1983 . Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 , and 20 requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . This proceeding was 21 referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636 (b)(1). 22 The court defers plaintiff’s request for in forma pauperis status at this time. 23 As discussed below, plaintiff’s complaint is dismissed; plaintiff is given the option to 24 voluntarily dismiss this action, or file an amended complaint. 25 II. Screening Standards 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [7] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989); Franklin, 745 F.2d at 1227 . 10 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 11 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 12 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 13 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 14 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 15 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 16 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 17 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 18 McKeithen, 395 U.S. 411, 421 (1969). 19 III. Plaintiff’s Complaint 20 On August 14, 2018, plaintiff was at the front of his cell door, ready to exit. The cell door 21 opened one-quarter of the way, plaintiff stuck his arm out and waved to the tower officer to open 22 the door all the way. Suddenly, the cell door slammed on plaintiff’s arm, causing him significant 23 injury. It took the tower office one or two minutes to open the cell door; plaintiff then fell to the 24 floor in severe pain. He then got up and ran to the yard to alert officers he was injured, then fell 25 to the ground, after which he was taken to medical to be treated. Plaintiff may require surgery, 26 and is receiving “constant” physical therapy for his injuries. (ECF No. 1 at 7.) 27 Plaintiff seeks, inter alia, money damages for the permanent injuries to his hand and arm. 28 //// 1 IV. Analysis 2 A. 42 U.S.C. § 1983 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 5 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 6 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 7 at law, suit in equity, or other proper proceeding for redress . . . . [8] 42 U.S.C. § 1983 . 9 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 10 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386 , 11 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see also Chapman v. 12 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 13 1059, 1068 (9th Cir. 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the 14 extent that the violation of a state law amounts to the deprivation of a state-created interest that 15 reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.” 16 Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway 17 Unified School District, 90 F.3d 367, 370 (9th Cir. 1996)). 18 To state a claim under § 1983, a plaintiff must demonstrate that there is an actual 19 connection or link between the actions of the defendants and the deprivation alleged to have been 20 suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress 21 did not intend § 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 22 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption 23 of any plan or policy demonstrating their authorization or approval of such misconduct). “A 24 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 25 § 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform 26 an act which he is legally required to do that causes the deprivation of which complaint is made.” 27 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); Preschooler II v. Clark Cnty. Sch. Bd. of 28 Trustees., 479 F.3d 1175 , 1183 (9th Cir. 2007). 1 Although supervisory government officials may not be held liable for the unconstitutional 2 conduct of their subordinates under a theory of respondeat superior, Ashcroft v. Iqbal, 556 U.S. 3 662, 676 (2009), they may be individually liable under Section 1983 if there exists “either (1) [the 4 supervisor’s] personal involvement in the constitutional deprivation; or (2) a sufficient causal 5 connection between the supervisor’s wrongful conduct and the constitutional violation.” Hansen 6 v. Black, 885 F.2d 642, 646 (9th Cir. 1989). The requisite causal connection between a 7 supervisor’s wrongful conduct and the violation of the prisoner’s constitutional rights can be 8 established in a number of ways, including by demonstrating that a supervisor’s own culpable 9 action or inaction in the training, supervision, or control of his subordinates was a cause of 10 plaintiff's injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011); Larez v. City of Los 11 Angeles, 946 F.2d 630, 646 (9th Cir. 1991). A plaintiff must also show that the supervisor had 12 the requisite state of mind to establish liability, which turns on the requirement of the particular 13 claim -- and, more specifically, on the state of mind required by the particular claim -- not on a 14 generally applicable concept of supervisory liability. Oregon State University Student Alliance v. 15 Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). 16 B. Substantive Due Process 17 Plaintiff brings his first claim as a substantive due process claim under the Fourteenth 18 Amendment. Plaintiff, a jailhouse lawyer, concedes he was reluctant to file this action because 19 his research suggested he should pursue a state negligence action because “this case is mere 20 negligence for it was a mechanical error not purposeful excessive force.” (ECF No. 1 at 8-9.) 21 But he argues that the CDCR “has a liberty interest to protect him from harm as an inmate under 22 its care and it did not [do] that when it negligently did not safeguard its mechanical cell door 23 system, allowing the cell door to slam on [plaintiff’s] arm causing permanent injury.” (ECF No. 24 1 at 11.) He contends that such incident “shocks the conscience” under Sandin v. Connor, 515 25 U.S. 472 (1995), raising an atypical hardship for plaintiff, which should meet the court’s 26 screening standards under 28 U.S.C. § 1915 (A). Plaintiff relies on Wood v. Ostrander, 851 F.2d 27 1212 (9th Cir. 1988). Wood adduced facts that a state trooper arrested the driver, impounded the 28 car, and left Wood by the side of the road at night in a high crime area, which showed “an 1 intentional assertion of government power which, . . . tends to show a disregard for Wood’s safety 2 that may amount to more than negligence.” Id. at 1215. 3 Despite plaintiff’s efforts, the substantive due process clause is not an appropriate vehicle 4 to raise claims regarding prison-related injuries that “implicate a more specific constitutional 5 right” protected by the Eighth Amendment. See Graham v. Connor, 490 U.S. 386, 393 (1989). 6 Rather, the Supreme Court has emphasized that the Eighth Amendment’s cruel and unusual 7 punishments clause is the appropriate mechanism for raising claims that challenge inhumane or 8 unsafe conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (a claim 9 arises under the Eighth Amendment if prison officials fail to protect prisoners from violence at 10 the hands of other prisoners). “If, in a § 1983 suit, the plaintiff's claim can be analyzed under an 11 explicit textual source of rights in the Constitution, a court should not resort to the more 12 subjective standard of substantive due process.” Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th 13 Cir. 2001) (internal quotation marks omitted). “Jailers may owe a special duty of care to those in 14 their custody under state tort law, . . . .but for the reasons previously stated we reject the 15 contention that the Due Process Clause of the Fourteenth Amendment embraces such a tort law 16 concept.” Daniels v. Williams, 474 U.S. 327, 335-36 (1986) 17 Plaintiff includes no factual allegations that identify a Fourteenth Amendment denial of 18 equal protection or denial of due process. Thus, plaintiff’s claim is more appropriately brought, if 19 at all, under the Eighth Amendment. 20 C. Eighth Amendment -- Conditions of Confinement or Failure to Protect 21 Arguably, plaintiff’s allegations could be liberally construed as claiming that defendants 22 failed to keep plaintiff safe or properly maintain the cell door, purportedly violating the Eighth 23 Amendment. 24 1. Governing Standards 25 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 26 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 27 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. 28 Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) 1 (quotation marks omitted). While conditions of confinement may be, and often are, restrictive 2 and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 3 F.3d at 1045 (citing Rhodes, 452 U.S. at 347 ) (quotation marks omitted). Thus, conditions which 4 are devoid of legitimate penological purpose or contrary to evolving standards of decency that 5 mark the progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 6 1045 (quotation marks and citations omitted); Rhodes, 452 U.S. at 346 . Prison officials have a 7 duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 8 care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks 9 and citations omitted), but not every injury that a prisoner sustains while in prison represents a 10 constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). 11 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were 12 deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511 U.S. 13 at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Morgan, 465 F.3d at 1045 ; 14 Johnson v. Lewis, 217 F.3d at 731 ; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The 15 deliberate indifference standard involves an objective and a subjective prong. 16 First, the alleged deprivation must be, in objective terms, “sufficiently serious . . . .” 17 Farmer, 511 U.S. at 834 . Second, the prison official must “know[] of and disregard[] an 18 excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837 . Thus, a prison official 19 may be held liable under the Eighth Amendment for denying humane conditions of confinement 20 only if he knows that inmates face a substantial risk of harm and disregards that risk by failing to 21 take reasonable measures to abate it. Id. at 837-45 . This “involves a two-part inquiry.” Thomas, [22] 611 F.3d at 1150 . “First, the inmate must show that the prison officials were aware of a 23 ‘substantial risk of serious harm’ to an inmate’s health or safety.” Id. (quoting Farmer, 511 U.S. 24 at 837). “This part of [the] inquiry may be satisfied if the inmate shows that the risk posed by the 25 deprivation is obvious.” Thomas, 611 F.3d at 1150 (citation omitted). “Second, the inmate must 26 show that the prison officials had no ‘reasonable’ justification for the deprivation, in spite of that 27 risk.” Id. (citing Farmer, 511 U.S. at 844 ) (“[P]rison officials who actually knew of a substantial 28 risk to inmate health or safety may be found free from liability if they responded reasonably.”) 1 Mere negligence on the part of the prison official is not sufficient to establish liability, but rather, 2 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835 ; Frost, 152 F.3d at 1128 . 3 Also, prison officials must take reasonable measures to guarantee inmates’ safety. See 4 Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). A prison official can be liable for failing to 5 protect only if: (1) there is an “excessive” and “substantial risk of serious harm,” and (2) the 6 official is subjectively aware of the risk but deliberately ignores it. Farmer, 511 U.S. at 828-29 . 7 2. Discussion 8 Even liberally construing plaintiff’s allegations, his complaint fails to state an Eighth 9 Amendment claim. Plaintiff concedes that “this case is mere negligence for it was a mechanical 10 error not purposeful excessive force.” (ECF No. 1 at 9.) Such concession explains why plaintiff 11 did not attempt to bring this action as a violation of his Eighth Amendment rights, but rather 12 substantive due process, as addressed above. “An accident, although it may produce added 13 anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain.” 14 Estelle, 429 U.S. at 105. Plaintiff sets forth no facts suggesting that any of the defendants had 15 personal knowledge and understood that plaintiff faced an excessive risk of harm, or that any of 16 the defendants deliberately ignored the risk or otherwise acted unreasonably in the face of the 17 risk. Rather, plaintiff’s allegations, without more, would attempt to transform a negligence action 18 into an Eighth Amendment violation but without plausible factual support. Negligence and gross 19 negligence do not constitute deliberate indifference. Farmer, 511 U.S. at 835-36, & n.4 . “With 20 deliberate indifference lying somewhere between the poles of negligence at one end and purpose 21 or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference 22 with recklessness.” Id. at 836 . An accident or inadvertent failure to provide adequate care does 23 not rise to the level of deliberate indifference. See Estelle v. Gamble, 429 U.S. 97 , 105-106 24 (1976); see, e.g., Daniels v. Williams, 474 U.S. 327, 328 (1986) (finding sheriff’s deputy not 25 liable under Section 1983 for injuries sustained by inmate who slipped on pillow negligently left 26 on stairs). For example, although medical malpractice may give rise to a state tort claim, it does 27 not violate the Eighth Amendment. Estelle, 429 U.S. at 106 . “By analogy, a personal injury 28 resulting from a negligent act does not violate the Eight Amendment merely because the victim is 1 a prisoner.” Hickman v. Hudson, 557 F.Supp. 1341, 1345 (W.D. Va. March 2, 1983) (finding 2 “that the alleged negligent closing of a cell door on plaintiff’s hand does not state a claim under 3 the eighth amendment.”) 4 Even if the mechanical door was not properly maintained, an action concerning such 5 maintenance, absent facts not alleged here, would sound in negligence. The Supreme Court has 6 made clear that the Constitution is not a freestanding “font of tort law” and thus does not give rise 7 to a general duty to prevent harm. Paul v. Davis, 424 U.S. 693, 701 (1976); accord Town of 8 Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005). While the court is sympathetic to plaintiff’s 9 pain and injuries sustained from this accident, his allegations fail to rise to the level of deliberate 10 indifference. See Estelle, 429 U.S. at 105 . Because plaintiff’s allegations demonstrate only 11 putative negligence claims, plaintiff fails to state a claim for relief under the Eighth Amendment. 12 D. Improper Defendants 13 In his complaint plaintiff named the California Department of Corrections (“CDCR”) as 14 one of the defendants. The Eleventh Amendment serves as a jurisdictional bar to suits brought by 15 private parties against a state or state agency unless the state or the agency consents to such suit. 16 See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); 17 Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of 18 California has not consented to suit. Accordingly, plaintiff's claims against the CDCR are 19 frivolous and must be dismissed. 20 Plaintiff also names “John Doe Warden” as a defendant, alleging the warden was 21 “responsible for plaintiff’s injuries,” without further factual support. As discussed above, there is 22 no liability in federal civil rights litigation under a theory of respondeat superior. Iqbal, 556 U.S. 23 at 676 . 24 V. Leave to Amend 25 Because plaintiff has failed to state a cognizable civil rights claim, his complaint must be 26 dismissed. In light of plaintiff’s expressed ambivalence over whether he could state a cognizable 27 //// 28 //// 1 substantive due process claim,1 the court will allow plaintiff to voluntarily dismiss this action so 2 that he may pursue his tort claims in state court. In an abundance of caution, plaintiff may choose 3 to file an amended complaint in this court, provided he can set forth facts demonstrating a 4 constitutional violation. If he chooses to file an amended complaint, the court will at that time 5 address his request to proceed in forma pauperis, as well as payment of the court’s filing fee. 6 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 7 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 8 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 9 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 10 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 11 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371 ; May v. Enomoto, 633 12 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 13 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266 , 14 268 (9th Cir. 1982). 15 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 16 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 17 complaint be complete in itself without reference to any prior pleading. This requirement exists 18 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 19 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 20 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 21 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 22 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 23 and the involvement of each defendant must be sufficiently alleged. 24 //// 25 //// [26] 27 1 Plaintiff also wrote on one of his exhibits: “plaintiff understands this action is a negligence case, but there is case law that suggests he can bring it in the district court under supplemental 28 due process, he can [at] least see if it’s possible.” (ECF No. 1 at 17.) 1 VI. Conclusion 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiffs complaint is dismissed. 4 2. Within thirty days from the date of this order, plaintiff shall complete the attached 5 | Notice of Election and submit the following documents to the court: 6 a. The completed Notice of Election; and 7 b. If he elects to amend, an original Amended Complaint. 8 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 9 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 10 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 11 Failure to file an amended complaint in accordance with this order may result in the 12 | dismissal of this action. 13 | Dated: March 8, 2021 i Aectl Aharon 19 | feenosa7 14d UNITED STATES MAGISTRATE JUDGE [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] DAVID PERRYMAN, No. 2:21-cv-0337 KJN P [11] Plaintiff, [12] v. NOTICE OF ELECTION [13] CALIFORNIA DEPARTMENT OF 14 CORRECTIONS, et al., 15 Defendants. [16] 17 Plaintiff hereby elects to proceed as follows: 18 _____________ Plaintiff elects to voluntarily dismiss this action and 19 pursue his tort claims in state court. 20 OR 21 _____________ Plaintiff elects to file the appended Amended Complaint. [22] DATED: [23] 24 ________________________________ Plaintiff