1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDDY MCCARDIE, No. 2:24-cv-0985 AC P 12 Plaintiff, 13 v. ORDER 14 SANDRA PENDLETON, et al., 15 Defendants. 16 17 Plaintiff is a state inmate who filed this civil rights action pursuant to 42 U.S.C. § 1983 18 without a lawyer. He has requested leave to proceed without paying the full filing fee for this 19 action, under 28 U.S.C. § 1915. Plaintiff has submitted a declaration showing that he cannot 20 afford to pay the entire filing fee. See 28 U.S.C. § 1915(a)(2). Accordingly, plaintiff’s motion to 21 proceed in forma pauperis is granted.1 22 I. Statutory Screening of Prisoner Complaints 23 The court is required to screen complaints brought by prisoners seeking relief against “a 24 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A

25 1 This means that plaintiff is allowed to pay the $350.00 filing fee in monthly installments that 26 are taken from the inmate’s trust account rather than in one lump sum. 28 U.S.C. §§ 1914(a). As part of this order, the prison is required to remove an initial partial filing fee from plaintiff’s trust 27 account. See 28 U.S.C. § 1915(b)(1). A separate order directed to CDCR requires monthly payments of twenty percent of the prior month’s income to be taken from plaintiff’s trust account. 28 These payments will be taken until the $350 filing fee is paid in full. See 28 U.S.C. § 1915(b)(2). 1 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 2 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 3 an indisputably meritless legal theory or factual contentions that are baseless. Neitzke, 490 U.S. 4 at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 5 arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 11 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When 14 considering whether a complaint states a claim, the court must accept the allegations as true, 15 Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most 16 favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 17 II. Factual Allegations of the Complaint 18 The complaint names as defendants Pendleton, Rado, Trevino, and Frisk and alleges in 19 conclusory terms that plaintiff has been subject to harassment by correctional staff including 20 sexual advances, frivolous disciplinaries, verbal abuse, and threats on his life. ECF No. 1 at 2-3. 21 III. Failure to State a Claim 22 As an initial matter, the court notes that plaintiff did not sign the complaint, as required by 23 Federal Rule of Civil Procedure 11(a). As explained further below, the complaint does not state 24 any claims for relief. Therefore, instead of having plaintiff re-submit a signed copy of the 25 original complaint, he will be given an opportunity to submit a signed amended complaint. 26 Plaintiff is cautioned that the court will not consider the amended complaint if it is not signed. 27 Having conducted the screening required by 28 U.S.C. § 1915A, the court finds that the 28 complaint does not state any valid claims for relief because plaintiff has not alleged any specific 1 conduct by any defendant. Because of these defects, the court will not order the complaint to be 2 served on defendants. 3 Plaintiff may try to fix these problems by filing an amended complaint. In deciding 4 whether to file an amended complaint, plaintiff is provided with the relevant legal standards 5 governing his potential claims for relief which are attached to this order. See Attachment A. 6 The court further notes that plaintiff has filed 200 pages of exhibits with his complaint. 7 ECF Nos. 1 at 7-206. In filing an amended complaint, plaintiff is cautioned that the court will not 8 sift through his exhibits to attempt to decipher what specific claims he may be attempting to make 9 against any defendant. Any claims plaintiff wishes to make must be contained within the 10 complaint itself. 11 IV. Legal Standards Governing Amended Complaints 12 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 13 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 14 423 U.S. 362, 370-71 (1976). The complaint must also allege in specific terms how each named 15 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 16 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 17 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 18 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 19 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 20 268 (9th Cir. 1982) (citations omitted). 21 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 22 his amended complaint complete. Local Rule 220 requires that an amended complaint be 23 complete in itself without reference to any prior pleading. This is because, as a general rule, an 24 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 25 1967) (citations omitted). Once plaintiff files an amended complaint, any previous complaint no 26 longer serves any function in the case. Therefore, in an amended complaint, as in an original 27 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 28 //// 1 V. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 2 Your complaint will not be served because you have not signed the complaint and the 3 || facts alleged are not enough to state a claim. You are being given a chance to fix these problems 4 || by filing an amended complaint. If you file an amended complaint, pay particular attention to the 5 || legal standards attached to this order. Be sure to provide facts that show exactly what each 6 || defendant did to violate your rights. Any claims and information not in the amended 7 || complaint will not be considered. 8 CONCLUSION 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 11 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 12 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 13 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 14 || appropriate agency filed concurrently herewith. 15 3. Plaintiffs complaint is unsigned, see Fed. R. Civ. P. 11(a), and fails to state a claim 16 || upon which relief may be granted, see 28 U.S.C. § 1915A, and will not be served. 17 4. Within thirty days from the date of service of this order, plaintiff may file an amended 18 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 19 || Procedure, and the Local Rules of Practice. The amended complaint must be signed, bear the 20 || docket number assigned this case, and be labeled “First Amended Complaint.” 21 5. Failure to file an amended complaint in accordance with this order will result in a 22 || recommendation that this action be dismissed. 23 6. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 24 | form used in this district. 25 || DATED: November 15, 2024 A /, ~

26 ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE

1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Personal Involvement 6 The civil rights statute requires that there be an actual connection or link between the 7 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 8 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 9 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a 10 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 11 in another’s affirmative acts or omits to perform an act which he is legally required to do that 12 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 13 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 14 link each named defendant with some affirmative act or omission that demonstrates a violation of 15 plaintiff's federal rights. 16 II. Sexual Harassment 17 “Although prisoners have a right to be free from sexual abuse, . . . , the Eighth 18 Amendment’s protections do not necessarily extend to mere verbal sexual harassment.” Austin v. 19 Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (internal citation omitted). While “the Ninth 20 Circuit has recognized that sexual harassment may constitute a cognizable claim for an Eighth 21 Amendment violation, the Court has specifically differentiated between sexual harassment that 22 involves verbal abuse and that which involves allegations of physical assault, finding the latter to 23 be in violation of the constitution.” Minifield v. Butikofer, 298 F. Supp. 2d 900, 904 (N.D. Cal. 24 2004) (citing Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000)); Austin, 367 F.3d at 25 1171-72 (officer’s conduct was not sufficiently serious to violate the Eighth Amendment where 26 officer exposed himself to prisoner but never physically touched him). 27 III. Verbal Harassment 28 “Verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation 1 under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (quoting 2 Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); see also Keenan v. Hall, 83 F.3d 1083, 3 1092 (9th Cir. 1996) (stating that “verbal harrassment generally does not violate the Eighth 4 Amendment”), amended on other grounds by 135 F.3d 1318 (9th Cir. 1998); Gaut v. Sunn, 810 5 F.2d 923, 925 (9th Cir. 1987) (a “mere naked threat” from prison guards does not violate the 6 Eighth Amendment). 7 IV. False Disciplinary Reports 8 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly 9 accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 10 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the 11 disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 12 1983. See Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984). An exception exists when 13 the fabrication of charges infringed on the inmate’s substantive constitutional rights, such as 14 when false charges are made in retaliation for an inmate’s exercise of a constitutionally protected 15 right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation 16 for a grievance filed by an inmate is actionable under section 1983. 17 18 19 20 21 22 23 24 25 26 27 28