Fields v. Masiel et al
Filing
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ORDER Requiring Plaintiff to either File Amended Complaint or Notify Court of Willingness to Proceed Only on Cognizable Claims,signed by Magistrate Judge Barbara A. McAuliffe on 11/28/2011. (30 Day Deadline for Amended Complaint) (Attachments: # 1 1983 Amended Complaint Form)(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN FIELDS,
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Plaintiff,
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CASE NO. 1:10-cv–01699-AWI-BAM PC
v.
ORDER REQUIRING PLAINTIFF TO EITHER
FILE AMENDED COMPLAINT OR NOTIFY
COURT OF WILLINGNESS TO PROCEED
ONLY ON COGNIZABLE CLAIMS
JOSE MASIEL, et al.,
(ECF No. 1)
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Defendants.
/ THIRTY-DAY DEADLINE
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I.
Screening Requirement
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Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed
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September 17, 2010. (ECF No. 1.)
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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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The complaint alleges that on November 9, 2007, while moving Plaintiff to a different facility
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Defendants Masiel, Aguirre, and Hernandez confiscated his medically prescribed pillows. The
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pillows has been approved due to a surgical repair to Plaintiff’s neck. When Plaintiff reminded
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Defendants that he had a medical chrono for the pillows, Defendant Masiel stated that he did not care
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about the chrono and the pillows were not leaving his unit. Plaintiff stated that he would file a
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complaint and Defendant Masiel told Plaintiff that the reason he wasn’t being allowed to take the
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pillows was because he filed staff complaints. Defendant Hernandez told Plaintiff to file a staff
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complaint and Defendant Aguirre just stood there shaking his head in agreement.
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Plaintiff’s allegations that Defendants Masiel, Aguirre, and Hernandez confiscated his
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medically prescribed pillows and refused to allow him to take them to his new unit because he filed
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staff grievances is sufficient to state a cognizable claim for retaliation in violation of the First
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Amendment. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584
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F.3d 1262, 1269 (9th Cir. 2009).
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However, Plaintiff fails to state a cognizable claim for a violation of the Eighth Amendment.
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Liability under section 1983 exists where a defendant “acting under the color of law” has deprived
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the plaintiff “of a right secured by the Constitution or laws of the United States.” Jensen v. Lane
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County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment the
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plaintiff must “objectively show that he was deprived of something ‘sufficiently serious,’ and make
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a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health
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or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate
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indifference requires a showing that “prison officials were aware of a “substantial risk of serious
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harm” to an inmates health or safety and that there was no “reasonable justification for the
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deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)).
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Plaintiff’s complaint does not allege facts to show that he was at a substantial risk of harm from the
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confiscation of his pillows or that Defendants Masiel, Aguirre, and Hernandez were aware of a risk
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of harm. Thomas, 611 F.3d at 1150.
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In addition to money damages, Plaintiff seeks a declaration that his rights were violated. “A
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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of
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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village,
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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful
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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford
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relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759
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F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a
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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were
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violated. Accordingly, a declaration that Defendants Masiel, Aguirre, and Hernandez violated
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Plaintiff’s rights is unnecessary, and this action shall proceed as one for money damages only.
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III.
Conclusion and Order
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Plaintiff’s complaint states a cognizable claim against Defendants Masiel, Aguirre, and
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Hernandez for retaliation in violation of the First Amendment, but does not state any other claims
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for relief under section 1983. The Court will provide Plaintiff with the opportunity to file an
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amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson, 809
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F.2d 1446, 1448-49 (9th Cir. 1987).
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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only
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against Defendants Masiel, Aguirre, and Hernandez on the First Amendment claim, Plaintiff may
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so notify the Court in writing. The Eighth Amendment claims will then be dismissed for failure to
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state a claim. Plaintiff will then be provided with three summonses and three USM-285 forms for
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completion and return. Upon receipt of the forms, the Court will direct the United States Marshal
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to initiate service of process on Defendants Masiel, Aguirre, and Hernandez.
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If Plaintiff elects to amend, his amended complaint should be brief, Fed. R. Civ. P. 8(a), but
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must state what each named defendant did that led to the deprivation of Plaintiff’s constitutional or
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other federal rights, Iqbal,129 S. Ct. at 1948-49; Jones, 297 F.3d at 934. Although accepted as true,
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the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .
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. . .” Twombly, 550 U.S. at 555 (citations omitted). The mere possibility of misconduct is
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insufficient to state a claim. Iqbal, 129 S. Ct. at 1950. Further, Plaintiff may not change the nature
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of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d
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605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc.,
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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must
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be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220.
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Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an
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amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,
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644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
The Clerk’s Office shall send Plaintiff a civil rights complaint form;
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2.
Within thirty (30) days from the date of service of this order, Plaintiff must either:
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a.
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File an amended complaint curing the deficiencies identified by the Court in
this order, or
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Notify the Court in writing that he does not wish to file an amended
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complaint and is willing to proceed only against Defendants Masiel, Aguirre,
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and Hernandez on the First Amendment claim; and
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3.
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If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.
IT IS SO ORDERED.
Dated:
10c20k
November 28, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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