1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVION MICHAEL THOMPSON, No. 2:24-cv-1979 AC P 12 Plaintiff, 13 v. ORDER 14 PATRICK CORVELLO, 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 alleges that defendants Corvello and Parker violated plaintiff’s rights under 19 the Eighth Amendment. ECF No. 1. Specifically, plaintiff alleges that on February 27, 2024, 20 Parker attempted to give him a food tray that included peanuts. Id. at 3. When plaintiff advised 21 that he was allergic, Parker told him to take the tray anyway. Id. Plaintiff then put his hand in the 22 food port to stop the tray from coming in and told Parker he wanted to talk to a sergeant because 23 he was suicidal. Id. In response, Parker slammed plaintiff’s hand in the food trap multiple times. 24 Id. 25 III. Claims for Which a Response Will Be Required 26 After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that 27 plaintiff has adequately stated a valid claim for relief pursuant to the Eighth Amendment against 28 defendant Parker for excessive force. 1 IV. Failure to State a Claim 2 However, the allegations in the complaint are not sufficient to state any claim for relief 3 against defendant Corvello. The complaint does not contain any allegations against Corvello, 4 other than to identify him as the warden. It appears that Corvello has been named as a defendant 5 based solely on his position as warden, which is insufficient to state a claim for relief. Since 6 plaintiff may be able to allege facts to fix these problems, he has the option of filing an amended 7 complaint. 8 V. Options from Which Plaintiff Must Choose 9 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 10 from the two options listed below, plaintiff must return the attached Notice of Election form to 11 the court within 21 days from the date of this order. 12 The first option available to plaintiff is to proceed immediately against defendant 13 Parker on the Eighth Amendment claim for excessive force. By choosing this option, 14 plaintiff will be agreeing to voluntarily dismiss defendant Corvello. The court will proceed 15 to immediately serve the complaint and order a response from defendant Parker. 16 The second option available to plaintiff is to file an amended complaint to fix the 17 problems described in Section IV against defendant Corvello. If plaintiff chooses this 18 option, the court will set a deadline in a subsequent order to give plaintiff time to file an 19 amended complaint. 20 VI. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 21 Some of the allegations in the complaint state claims against the defendants and some do 22 not. You have stated a claim for excessive force against Parker, but you have not alleged any 23 facts about Corvello’s conduct. You cannot bring a claim against Corvello just because he is the 24 warden. You must explain what he did to violate your rights. 25 You have a choice to make. You may either (1) proceed immediately on your excessive 26 force claim against Parker and voluntarily dismiss the other claims; or (2) try to amend the 27 complaint. To decide whether to amend your complaint, the court has attached the relevant legal 28 standards that may govern your claims for relief. See Attachment A. Pay particular attention to 1 | these standards if you choose to file an amended complaint. 2 CONCLUSION 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 7 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 || appropriate agency filed concurrently herewith. 9 3. Plaintiffs claims against defendant Corvello do not state claims for which relief can 10 || be granted. 11 4. Plaintiff has the option to proceed immediately on his excessive force claim against 12 || defendant Parker as set forth in Section III above, or to file an amended complaint. 13 5. Within 21 days from the date of this order, plaintiff shall complete and return the 14 || attached Notice of Election form notifying the court whether he wants to proceed on the screened 15 || complaint or whether he wants to file an amended complaint. 16 6. If plaintiff does not return the form, the court will assume that he is choosing to 17 || proceed on the complaint as screened and will recommend dismissal without prejudice of all 18 | claims against defendant Corvello. 19 | DATED: November 19, 2024 * 20 Htttenr— Lhor—e_

ALLISON CLAIRE

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVION MICHAEL THOMPSON, No. 2:24-cv-1979 AC P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 PATRICK CORVELLO, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his excessive force claim against defendant 19 Parker without amending the complaint. Plaintiff understands that by choosing this 20 option, all claims against defendant Corvello will be voluntarily dismissed without 21 prejudice pursuant to Federal Rule of Civil Procedure 41(a). 22 23 _____ Plaintiff wants time to file an amended complaint. 24 25 DATED:_______________________

26 Kevion Michael Thompson Plaintiff pro se 27

28 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. Legal Standards Governing Amended Complaints

6 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 7 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 8 423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named 9 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 10 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague 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) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his amended complaint complete. See Local Rule 220. This is because, as a general rule, an 17 amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) 18 (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012). Therefore, in an amended complaint, every claim and every defendant must be included. 20

II. Legal Standards Governing Substantive Claims for Relief

21 A. Excessive Force 22 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 23 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 24 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 25 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 26 core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 27 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 28 1 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 2 injury, the need for application of force, the relationship between that need and the amount of 3 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 4 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 5 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 6 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 7 cause harm always violates contemporary standards of decency in violation of the Eighth 8 Amendment. Whitley, 475 U.S. at 327. 9 B. Personal Involvement 10 The civil rights statute requires that there be an actual connection or link between the 11 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 12 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 13 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a 14 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 15 in another’s affirmative acts or omits to perform an act which he is legally required to do that 16 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 17 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 18 link each named defendant with some affirmative act or omission that demonstrates a violation of 19 plaintiff's federal rights. 20 C. Supervisory Liability 21 Government officials may not be held liable for the unconstitutional conduct of their 22 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 23 (“In a § 1983 suit . . . the term “supervisory liability” is a misnomer. Absent vicarious liability, 24 each Government official, his or her title notwithstanding is only liable for his or her own 25 misconduct.”). When the named defendant holds a supervisory position, the causal link between 26 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 27 plaintiff must allege some facts indicating that the defendant either personally participated in or 28 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 1 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 2 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Supervisory 3 liability may also exist without any personal participation if the official implemented “a policy so 4 deficient that the policy itself is a repudiation of the constitutional rights and is the moving force 5 of the constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 6 1991) (citations and quotations marks omitted), abrogated on other grounds by Farmer v. 7 Brennan, 511 U.S. 825, 836-38 (1970). 8

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