1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD CARRASCO, Case No. 1:19-cv-00724-LJO-JDP 12 Plaintiff, SCREENING ORDER 13 v. ORDER THAT PLAINTIFF: 14 JOHNNY CABABE, et al., (1) NOTIFY THE COURT THAT HE

WILL PROCEED ONLY ON THE

15 Defendants. CLAIMS SANCTIONED BY THIS

ORDER AND VOLUNTARILY DISMISS

16 ALL OTHER CLAIMS AND

DEFENDANTS;

17 (2) FILE A FIRST AMENDED 18 COMPLAINT; OR 19 (3) NOTIFY THE COURT THAT HE

WISHES TO STAND BY HIS

20 COMPLAINT, SUBJECT TO

DISMISSAL OF CLAIMS AND

21 DEFENDANTS CONSISTENT WITH

THIS ORDER

22 ECF No. 1 23

ORDER DENYING PLAINTIFF’S MOTION

24 TO PRODUCE SUMMONS 25 ECF No. 10 26 27 Plaintiff Richard Carrasco is a state prisoner proceeding without counsel in this civil rights 28 action brought under 42 U.S.C. § 1983. Plaintiff’s complaint, ECF No. 1, is before the court for 1 screening under 28 U.S.C. § 1915A. Plaintiff alleges that he was physically assaulted by prison 2 officials, that his medical needs were ignored, and that officials retaliated against him for 3 attempting to submit grievances. He lists seventeen prison officials, including four unnamed 4 “Does,” as defendants. ECF No. 1 at 3. I find that plaintiff has stated an Eighth Amendment 5 excessive-force claim against defendants Johnny Cababe, Robert Ruvalcaba, Robert Ruiz, and 6 Brian Morse, as well as a First Amendment retaliation claim against defendant Doe number four, 7 but no other claims. Plaintiff must choose between (1) proceeding only on the claims found 8 cognizable by the court and voluntarily dismissing all other claims and defendants, (2) amending 9 the complaint to add facts in an attempt to make out additional claims or claims against additional 10 defendants, or (3) standing by the current complaint subject to dismissal of claims and defendants 11 consistent with this order. 12 SCREENING AND PLEADING REQUIREMENTS 13 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 14 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 15 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 16 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 17 immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 18 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 19 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 20 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 21 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 23 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 24 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 25 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 26 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 27 n.2 (9th Cir. 2006) (en banc) (citations omitted). 28 1 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 2 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 3 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 4 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 5 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 6 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 7 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 8 DISCUSSION 9 Threshold Requirements of 42 U.S.C. § 1983 10 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 11 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 12 state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law 13 caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park 14 v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation 15 requirement by showing either (1) the defendant’s “personal involvement” in the alleged 16 deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a 17 supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th 18 Cir. 2018). 19 The defendants here are all state-prison employees who, accepting plaintiff’s allegations 20 as true, can be inferred to have acted under color of state law. See Paeste v. Gov’t of Guam, 798 21 F.3d 1228, 1238 (9th Cir. 2015) (“[G]enerally, a public employee acts under color of state law 22 while acting in his official capacity or while exercising his responsibilities pursuant to state law.” 23 (quoting West v. Atkins, 487 U.S. 42, 50 (1988))). However, plaintiff has failed to satisfy the 24 causation requirement with respect to seven defendants: Mack, Hart, Warden Doe, Vasquez, Litt, 25 Doe number two, and Doe number three. While these defendants are mentioned in passing 26 throughout the complaint, plaintiff has not alleged sufficient facts that link any of them to an 27 alleged deprivation. See also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“[W]hen a 28 supervisor is found liable . . . the supervisor is being held liable for his or her own culpable action 1 or inaction, not held vicariously liable for the culpable action or inaction of his or her 2 subordinates.”). 3 The remaining question is whether the alleged actions of the other ten defendants violated 4 federal law. 5 Excessive Force and the Eighth Amendment 6 Plaintiff alleges that four defendants—Cababe, Ruvalcava, Morse, and Ruiz—severely 7 beat him without justification while he was restrained. ECF No. 1 at 8. Plaintiff alleges that the 8 beating caused permanent eye damage and other serious medical issues. Id. at 12. These 9 allegations are sufficient to state an excessive-force Eighth Amendment claim against defendants 10 Cababe, Ruvalcava, Morse, and Ruiz. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 11 Medical Deliberate Indifference 12 Plaintiff alleges that three defendants who personally participated in his medical care— 13 Flack, Tate, Luong—violated his rights. To succeed on such a claim, plaintiff must show that 14 these defendants were deliberately indifferent to his serious medical needs. See Estelle v. 15 Gamble, 429 U.S. 97, 105 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A 16 medical need is “serious” when a failure to treat “could result in further significant injury or the 17 unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (internal quotation marks and 18 citations omitted). And plaintiff must show that defendants’ response was deliberately indifferent 19 by showing “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” 20 and “harm caused by the indifference.” Id. Deliberate indifference is a higher standard than 21 medical negligence or malpractice, and a difference of opinion between medical professionals 22 generally does not amount to deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051 (9th 23 Cir. 2004). 24 Plaintiff’s medical need was serious, but he has not alleged facts that show a deliberately 25 indifferent response. Plaintiff’s claims that defendant Luong incorrectly recorded his eye issue as 26 a cataract and that defendant Flack wrote a medical report containing falsehoods, see ECF No. 1 27 at 10, do not suggest that any harm followed. And his claims that Flack failed to decontaminate 28 his eye and that defendant Tate discontinued his morphine, id. at 9, contain insufficient detail to 1 rise to the high level of deliberate indifference. 2 First Amendment Retaliation 3 The remainder of plaintiff’s claims (against Doe number four, Wood, and Madden) 4 concern disciplinary actions taken against him—actions that plaintiff alleges were in retaliation 5 for filing grievances. Prisoners have a First Amendment right to file grievances, and actions 6 taken against them for exercising that right violate the Constitution. See Brodheim v. Cry, 584 7 F.3d 1262, 1269 (9th Cir. 2009). The basic elements of a First Amendment retaliation claim are 8 an adverse action against an inmate because of that prisoner’s protected conduct, where the 9 adverse action would reasonably chill the prisoner’s First Amendment activity and did not 10 reasonably advance a legitimate correctional goal. Id. 11 Plaintiff has stated a First Amendment retaliation claim against defendant Doe number 12 four. Plaintiff alleges that this Doe defendant twice threatened plaintiff for reporting staff 13 conduct and submitting to interviews related to his complaints. See ECF No. 1 at 10 and 12. This 14 allegation, construed liberally, contains the elements of a retaliation claim. See Brodheim, 584 at 15 1270 (“[T]he mere threat of harm can be an adverse action, regardless of whether it is carried out 16 because the threat itself can have a chilling effect.”). 17 But plaintiff has not stated a retaliation claim against defendants Wood and Madden. 18 Plaintiff alleges that defendant Wood intentionally lost a complaint that plaintiff filed, see ECF 19 No. 1 at 19 and 21, and that Madden informed plaintiff that a grievance would be read by 20 correctional officers, see id. at 10-11. Standing alone, however, these allegations do not contain 21 the necessary elements for a First Amendment complaint: without more, they do not constitute 22 adverse actions that would reasonably chill plaintiff’s First Amendment rights, and there is no 23 clearly inferable connection between plaintiff’s protected conduct and these actions. See 24 Brodheim, 584 F.3d at 1269; see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 25 (“[P]laintiff must allege a causal connection between the adverse action and the protected 26 conduct.”). 27 CONCLUSION AND ORDER 28 I find that plaintiff has stated an Eighth Amendment excessive-force claim against 1 defendants Cababe, Ruvalcaba, Ruiz, and Morse, as well as a First Amendment retaliation claim 2 against defendant Doe number four, but no other claims. In light of this conclusion and the law 3 cited above, plaintiff must choose between (1) proceeding only on the claims found cognizable by 4 the court and voluntarily dismissing all other claims and defendants, (2) amending the complaint 5 to add facts in an attempt to make out additional claims or claims against additional defendants, 6 or (3) standing on the current complaint subject to dismissal of claims and defendants consistent 7 with this order. 8 Should plaintiff choose to amend the complaint, the amended complaint should be brief, 9 Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 10 plaintiff’s constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 11 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a 12 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 13 at 570). There is no respondeat superior liability, and each defendant is only liable for his or her 14 own misconduct. See id. at 677. Plaintiff must allege that each defendant personally participated 15 in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note 16 that a short, concise statement of the allegations in chronological order will assist the court in 17 identifying his claims. Plaintiff should name each defendant and explain what happened, 18 describing personal acts by the individual defendant that resulted in the violation of plaintiff’s 19 rights. Plaintiff should also describe any harm he suffered from the violation of his rights. 20 Plaintiff should not fundamentally alter his complaint or add unrelated issues. See Fed. R. Civ. P. 21 18; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different 22 defendants belong in different suits . . . .”). 23 Any amended complaint will supersede the original complaint, Lacey v. Maricopa 24 County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face 25 without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an 26 amended complaint is filed, the original complaint no longer serves any function in the case. 27 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 28 of each defendant must be sufficiently alleged. The amended complaint should be titled “First 1 | Amended Complaint,” refer to the appropriate case number, and be an original signed under 2 | penalty of perjury. 3 Plaintiff has also filed motion to produce a summons for each defendant. ECF No. 10. 4 | Since we are still at the screening stage of this case, I deny this motion as premature. 5 Accordingly, 6 1. The clerk’s office must send plaintiff a civil rights complaint form. 7 2. Within thirty (30) days from the date of service of this order, plaintiff must either: 8 a. File a first amended complaint; 9 b. Notify the court in writing that he does not wish to file an amended complaint and 10 is instead willing to proceed only on the Eighth Amendment excessive-force claim 11 against Cababe, Ruvalcaba, Ruiz, and Morse, and First Amendment retaliation 12 claim against defendant Doe number four, voluntarily dismissing all other claims 13 and defendants per Rule 41(a)(1)(A)(); or 14 c. Notify the court in writing that he does not agree to go forward on only the claims 15 found cognizable by this order or file an amended complaint, in which case I will 16 recommend the dismissal, with prejudice, of claims and defendants consistent with 17 this order. 18 3. Should plaintiff choose to amend the complaint, plaintiff must caption the amended 19 | complaint “First Amended Complaint” and refer to the appropriate case number. 20 4. Plaintiff's motion to produce a summons for each defendant, ECF No. 10, is denied as 21 | premature. 22 5. Failure to comply with this order will result in the dismissal of this action. 23

IT IS SO ORDERED.

25 ( Waban Dated: _ November 20, 2019 26 UNI STATES MAGISTRATE JUDGE 27 28

1 2 No. 205. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28