(PC) Moore v. Clark et al, No. 1:2009cv01961 - Document 11 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED in its entirety, WITH PREJUDICE for failure to state a claim upon which relief may be granted; re 10 Amended Prisoner Civil Rights Complaint filed by Charles Moore ; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 02/28/2011. Objections to F&R due by 4/4/2011 (Martin, S)
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(PC) Moore v. Clark et al Doc. 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES MOORE, 11 Plaintiff, 12 v. 13 KEN CLARK, WARDEN, et al., CASE NO. 1:09-cv-01961-AWI-MJS (PC) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL WITH PREJUDICE OF PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM 14 Defendants. 15 (ECF No. 10) / OBJECTIONS DUE IN THIRTY DAYS 16 17 18 19 I. PROCEDURAL HISTORY Plaintiff Charles Moore (“Plaintiff”) is an inmate in the custody of the California 20 Department of Corrections and Rehabilitation (“CDCR”) proceeding pro se and in forma 21 22 23 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the action on November 9, 2009. (ECF No. 1.) No other parties have appeared. 24 In a Screening Order filed December 27, 2010, the Court dismissed Plaintiff’s 25 Complaint for failure to state a claim upon which relief could be granted. (ECF No. 9.) 26 Plaintiff filed his First Amended Complaint on January 28, 2011. (ECF No. 10.) 27 1 Dockets.Justia.com 1 2 3 Plaintiff’s First Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff’s Complaint fails to state a claim. II. SCREENING REQUIREMENTS 4 The Court is required to screen complaints brought by prisoners seeking relief 5 6 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 8 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 9 10 relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion 11 12 13 14 thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 15 A complaint must contain “a short and plain statement of the claim showing that the 16 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 17 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 18 19 20 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 21 forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 22 face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual 23 allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949. 24 III. SUMMARY OF COMPLAINT 25 26 Plaintiff claims violation of his First Amendment rights through retaliatory tactics and 27 2 1 use of excessive force.1 Plaintiff names R. Vogel as the only Defendant.2 2 3 Plaintiff alleges the following: On October 1, 2008, Plaintiff was assaulted by Defendant with an MK-9 chemical weapon. Plaintiff suffered retaliatory injuries as a result 4 5 of filing a lawsuit. Warden Ken Clark failed to investigate statutory violations. Based on these claims, Plaintiff seeks investigation by the Federal Bureau of 6 7 Investigation. 8 IV. 9 ANALYSIS The Civil Rights Act under which this action was filed provides: 10 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 11 12 13 14 42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal 15 16 17 Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). 18 A. 19 Plaintiff states that he is being retaliated against by Defendant for exercising his 20 Retaliation Claim constitutional rights. 21 “Within the prison context, a viable claim of First Amendment retaliation entails five 22 23 basic elements: (1) An assertion that a state actor took some adverse action against an 24 1 25 26 27 Plaintiff om its m any of the claim s m ade in his original com plaint, including due process, denial of access to courts, inm ate appeal process, property, and prison policy violation claim s. 2 Plaintiff does not include any of the Defendants nam ed in the original Com plaint. Vogel is a newly nam ed Defendant. 3 1 2 3 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 4 5 6 Cir. 2005). Plaintiff has failed to plead facts sufficient to sustain a claim of retaliation by prison 7 officials. Plaintiff states that he suffered retaliatory injuries for filing a lawsuit. He does not 8 state what the lawsuit related to, what the injuries were, why he feels they were connected 9 to the lawsuit and not in furtherance of some legitimate penological goal, who performed 10 the retaliatory conduct or how it was performed. (Even if Plaintiff intended to describe the 11 12 13 14 use of a chemical weapon against him as the retaliatory conduct, the need to allege facts showing there was no legitimate alternative reason for the use of such a device would be more, not less, important.) 15 Plaintiff was previously notified of the relevant legal standards and the deficiencies 16 in his prior complaint. The Court provided a detailed analysis of Plaintiff’s retaliation claim 17 and guidelines for perfecting such a claim. Plaintiff’s First Amended Complaint contains far 18 less specificity than in the original and again fails to state a claim. the Court will 19 20 recommend that this claim be dismissed without further leave to amend. 21 B. 22 Though not explicitly stated, Plaintiff appears to be claiming that Defendant used 23 24 Excessive use of Force Claim excessive force in violation of his constitutional rights. The analysis of an excessive force claim brought pursuant to Section 1983 begins 25 with “identifying the specific constitutional right allegedly infringed by the challenged 26 27 application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). 4 The Eighth 1 2 3 Amendment’s prohibition on cruel and unusual punishment applies to incarcerated individuals, such as the Plaintiff here. Whitley v. Albers, 475 U.S. 312, 318 (1976). To state an Eighth Amendment claim, a plaintiff must allege that the use of force was 4 5 6 “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to cause harm always violates 7 contemporary standards of decency, regardless of whether or not significant injury is 8 evident. Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also Oliver v. Keller, 289 F.3d 623, 9 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis 10 uses of force, not de minimis injuries). However, not “every malevolent touch by a prison 11 12 13 guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes from 14 constitutional recognition de minimis uses of physical force, provided that the use of force 15 is not of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations 16 marks and citations omitted). 17 Whether force used by prison officials was excessive is determined by inquiring if 18 19 20 the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must look at the 21 need for application of force; the relationship between that need and the amount of force 22 applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and 23 inmates as reasonably perceived by prison officials; and any efforts made to temper the 24 severity of the response. See Whitley, 475 U.S. at 321. The absence of significant injury 25 alone is not dispositive of a claim of excessive force. See Wilkens v. Gaddy, 130 S.Ct. 26 27 1175, 1176-77 (2010). 5 1 2 3 Plaintiff states that Defendant used a chemical weapon on him and “had SGT Vogel showed Charles Moore the required 128G endorsement choro, the use of force would never have been necessary.” (Pl.’s First Am. Compl. at 6.) This is the entirety of the detail 4 5 6 provided with respect to his excessive force claim. Rather than showing malicious and sadistic force, Plaintiff’s allegation that Defendant would not have needed to use force if 7 only Vogel had produced a 128G endorsement chrono leads the Court to believe that 8 Defendant did in fact see a legitimate need to use force based on the actual facts 9 presented to him. Moreover, the limited description of the force used would not support 10 the conclusion that it was excessive. 11 12 13 The Court’s Screening Order gave Plaintiff substantial guidance as to what would be needed to state a claim. Plaintiff apparently decided to disregard that advice. Because 14 Plaintiff’s First Amended Complaint again fails to state a claim, the Court will recommend 15 that it be dismissed without further leave to amend. 16 17 C. Habeas Claim The majority of statements and attachments to Plaintiff’s Amended Complaint deal 18 19 20 with his contention that he is being wrongfully detained in custody by the CDCR. In its prior Screening Order, the Court informed Plaintiff that a prisoner’s challenge to the legality or 21 duration of his custody can only be asserted in a writ of habeas corpus. Preiser v. 22 Rodriguez, 411 U.S. 475, 498-500 (1973); Young v. Kenny, 907 F.2d 874, 875-76 (9th Cir. 23 1990), cert. denied 11 S.Ct. 1090 (1991). Nevertheless, Plaintiff resubmitted the materials 24 related to his allegedly wrongful conviction and detention even after the Court instructed 25 him it would be pointless to do so. The resubmission of this material is further evidence 26 27 Plaintiff is unable or unwilling to focus here on his Section 1983 claims and, thus, further 6 1 2 evidence that amendment of such claims would be futile. V. 3 CONCLUSION AND ORDER The Court finds that Plaintiff’s First Amended Complaint fails to state any Section 4 5 1983 claims upon which relief may be granted against the named Defendants. Under Rule 6 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when 7 justice so requires.” In addition, “[l]eave to amend should be granted if it appears at all 8 possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 9 10 Cir. 2000) (internal citations omitted). However, in this action, Plaintiff has filed two complaints and received substantial guidance from the Court in its Screening Order. (ECF 11 12 13 Nos. 1, 9, & 10.) Even after receiving the Court’s guidance, Plaintiff failed to make any alterations or to include additional facts to address the noted deficiencies. In fact, 14 Plaintiff’s Amended Complaint includes almost no factual development of his Section 1983 15 claims. He focuses almost exclusively on his allegedly wrongful conviction and detention. 16 Because of this, the Court finds that the deficiencies outlined above are not capable of 17 being cured by amendment, and therefore recommends that further leave to amend not 18 19 20 be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 21 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that this 22 action be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon 23 which relief may be granted. 24 These Findings and Recommendation will be submitted to the United State District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 26 27 Within thirty (30) days after being served with these Findings and Recommendation, 7 1 2 3 Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District 4 5 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 9 Dated: ci4d6 February 28, 2011 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 8
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