Livingston v. Sanchez et al
Filing
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ORDER DISMISSING Certain Claims 1 , signed by Magistrate Judge Barbara A. McAuliffe on 11/23/11. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WARNER LIVINGSTON,
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Plaintiff,
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CASE NO. 1:10-cv–01152-BAM PC
ORDER DISMISSING CERTAIN CLAIMS
v.
(ECF No. 1)
J. SANCHEZ, et al.,
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Defendants.
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I.
Screening Requirement
Plaintiff Warner Livingston is a state prisoner proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed June 25, 2010.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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In determining whether a complaint states a claim, the Court looks to the pleading standard
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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
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544, 555, 127 S. Ct. 1955 (2007)).
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated
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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires
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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.
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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]
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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line
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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations
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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129
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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).
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II.
Discussion
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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation
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(“CDCR”) and is currently housed at the California State Prison-Los Angeles County. Plaintiff
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alleges that while he was housed at California State Prison-Corcoran (“CSP-Corcoran”), Defendants
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Sanchez and Ayon came to his cell and told Plaintiff and his cell mate that they were being moved
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to another building. After Plaintiff stated that he wanted to speak to a sergeant, Defendants Sanchez
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and Ayon removed their pepper spray and advanced toward Plaintiff. Plaintiff stated he didn’t want
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any problems and went to the floor. While Plaintiff was prone on the floor with his hands behind
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his back, Defendant Sanchez allegedly began pepper spraying Plaintiff and Defendant Ayon began
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banging Plaintiff’s head on the ground while punching him. Plaintiff claims excessive force in
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violation of the Eighth Amendment, violations of Due Process, and state law claims and is seeking
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injunctive relief and compensatory and punitive damages.
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Plaintiff’s allegations are sufficient to state a cognizable claim for excessive force in violation
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of the Eighth Amendment and assault and battery under state law against Defendants Sanchez and
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Ayon. However, as discussed below, Plaintiff fails to state any other claims for relief.
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The Due Process Clause protects against the deprivation of liberty without due process of
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law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). In order to state a cause
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of action for a deprivation of due process, a plaintiff must first identify a liberty interest for which
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the protection is sought. Id. To the extent that Plaintiff attempts to allege substantive due process
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violations, where a particular amendment provides an explicit textual source of constitutional
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protection against a particular sort of government behavior, that Amendment, not the more
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generalized notion of substantive due process, must be the guide for analyzing a plaintiff’s claims.”
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Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and brackets
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omitted) overruled on other grounds by Unitherm Food Systems, Inc. V. Swift –Eckrick, Inc., 546
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U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). In this case, the Eighth
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Amendment “provides [the] explicit textual source of constitutional protection . . . .” Patel, 103 F.3d
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at 874. Therefore, the Eighth Amendment rather than the Due Process Clause of the Fourteenth
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Amendment governs Plaintiff’s claims.
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Finally, Plaintiff seeks injunctive relief ordering that he be placed on single cell status or be
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transferred to a federal prison due to threats of future harm. Since Plaintiff is no longer incarcerated
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at CSP-Corcoran, he lacks standing to pursue his claims for injunctive relief. Summers v. Earth
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Island Institute, 555 U.S. 488, ___, 129 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d
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964, 969-73 (9th Cir. 2010); Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). To the extent that
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Plaintiff is seeking an order directed to CDCR,1 who are not defendants in this action, the Court does
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not have jurisdiction to grant Plaintiff the relief requested. Therefore, Plaintiff is limited to seeking
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damages for the violation of his rights.
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III.
Conclusion and Order
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Accordingly, it is HEREBY ORDERED that:
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1.
This action shall proceed on the complaint, filed June 25, 2010, against Defendants
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Sanchez and Ayon for excessive force in violation of the Eighth Amendment and
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assault and battery under state law for damages; and
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In addition, CDCR itself is immune from suit. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147
(9th Cir. 2007).
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Plaintiff’s due process claim and request for injunctive relief are DISMISSED, with
prejudice, for failure to state a claim.
IT IS SO ORDERED.
Dated:
10c20k
November 23, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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