Harris v. Kim

Full title: DARREN HARRIS, Plaintiff, v. DR. KIM, et al., Defendants

Court: United States District Court, E.D. California

Date published: Aug 10, 2007

No. CIV 05-0003 ALA P (E.D. Cal. Aug. 10, 2007)

Opinion

No. CIV 05-0003 ALA P.

August 10, 2007

ORDER

ARTHUR ALARCON, Senior Judge

On January 3, 2005, plaintiff Darren Harris, a prisoner proceeding in forma pauperis, filed this civil rights action under 42 U.S.C. § 1983. Docket No. 1. Mr. Harris alleges in his Complaint that his Constitutional rights were violated when officials of Corcoran State Prison forced him to clean a kitchen with "corrosive powderwash soap," prison medical personnel denied him treatment for his resulting injuries, and funds were stolen from his prison trust account. The Complaint names thirty-eight defendants, many of whom Mr. Harris seeks to hold liable in a purely supervisory capacity.¹

1 For reasons that are unclear, Mr. Harris includes only twenty-one of these defendants in the caption of his Complaint. He lists the rest in the body of the Complaint.

On January 26, 2005, the Court issued an order granting Mr. Harris leave to proceed in forma pauperis and ordering him to pay the $150 filing fee in accordance with 28 U.S.C. § 1915(b)(2). Docket No. 3. The order did not, however, direct the Clerk of Court to send Mr. Harris the documents necessary to effect service of process on any of the named defendants. Consequently, it appears that none of those defendants have yet been served with process.

Under 28 U.S.C. § 1915A, this Court is obligated to "review, before docketing . . . or . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," and to "dismiss . . . any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(a)-(b). This Court must therefore determine whether service is proper as to each of the numerous defendants named in Mr. Harris' Complaint. The Court must also determine, with respect to each defendant, whether the Complaint is frivolous or fails to state a claim.

Mr. Harris' Complaint adequately alleges claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against named defendants Olivarria, Castro, Molina, Williams, Clark, Kim, Klarich, and Lowden. It specifies particular actions allegedly committed by each of those defendants, which allegedly deprived Mr. Harris of federal Constitutional rights. Specifically, Mr. Harris asserts that defendants Olivarria, Castro, Molina, Williams, and Clark ordered him to clean the kitchen with the corrosive soap, that Dr. Kim refused to provide him with needed medical treatment, that defendant Lowden intentionally interfered with certain disciplinary proceedings against him and caused him to be reassigned to a dangerous assignment, and that Dr. Klarich falsified information about his medical condition. If the allegations of the Complaint are proven, Mr. Harris has a reasonable opportunity to prevail on the merits of this action as to those defendants.

Mr. Harris has not sufficiently pled a § 1983 cause of action, however, as to named defendants Alameida, Skribner, Brook, Becker, Trujillo, Tiernan, Rush, Hobbs, Cruz, Jones, Swarm, Cisneros, Garrett, James, Greaves, Grannis, Yamamoto, Centeno, Thirakomen, Hasadsri, Meis, Vidal, Chan, MacLennan, Dang, Tuason, Larson, Olsen, Steele, or Hardin. "To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person action under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006) (quoting Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989)). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of 1983, if [that person] does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made." Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). There is no respondeat superior liability under § 1983, and a person can only be subject to § 1983 liability for the acts of others "[i]n limited circumstances." Id. "[A] supervisor is liable for the constitutional violations of subordinates, 'if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.'" Id. (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).

Mr. Harris's Complaint completely fails to allege that any of the defendants listed at the top of the previous paragraph did any affirmative act, participated in any affirmative act, or omitted to perform any act they were legally required to do, so as to cause a deprivation of his Constitutional rights. The Complaint also fails to allege that any of those defendants participated in or directed violations of Mr. Harris' rights, or knew of violations but failed to prevent them. The only allegations pertaining to those defendants are so vague and conclusory as not to provide fair notice of the basis of Mr. Harris's claims against them. See Conley v. Gibson, 355 U.S. 41, 47 (1957) ("all the [Federal] Rules [of Civil Procedure] require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.") Consequently, the Court will dismiss Mr. Harris' Complaint against those defendants under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, but permit Mr. Harris leave to amend.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for the following defendants:

a. Olivarria

b. Castro

c. Molina

d. Williams

e. Clark

f. Kim

g. Klarich

h. Lowden

2. The Clerk of the Court shall send plaintiff eight USM-285 forms, one summons, an instruction sheet and a copy of the Complaint filed January 3, 2005.

3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 1 above; and

d. Nine copies of the endorsed Complaint filed January 3, 2005.

4. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

5. Plaintiff's Complaint is dismissed without prejudice as to named defendants Alameida, Skribner, Brook, Becker, Trujillo, Tiernan, Rush, Hobbs, Cruz, Jones, Swarm, Cisneros, Garrett, James, Greaves, Grannis, Yamamoto, Centeno, Thirakomen, Hasadsri, Meis, Vidal, Chan, MacLennan, Dang, Tuason, Larson, Olsen, Steele, and Hardin.

6. Plaintiff is granted thirty (30) days from the date of this order to file an amended Complaint.

INSTRUCTIONS FOR COMPLETING FORM USM-285

After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action. Print your name Print the complete case number listed on your complaint Print the name of one defendant on each separate form Print "Summons and Complaint Enter the name and address for service of one defendant on each individual USM-285 form Enter your name and mailing address 1 Enter the number of defendants you have named in your suit Check ONLY if the defendant listed on the form is an entity of the U.S. Government Sign and date the form, check the box marked " PLAINTIFF" and enter your telephone number (if one is available) If you are the plaintiff and are currently incarcerated, 1. PLAINTIFF: . 2. COURT CASE NUMBER: . 3. DEFENDANT: . 4. TYPE OF PROCESS: ." 5. SERVE AT: . 6. SEND NOTICE OF SERVICE TO REQUESTER AT: . 7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM — 285: . 8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: . 9. CHECK FOR SERVICE ON U.S.A.: . 10. . you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following: 1. An original Summons for each defendant to be served; 2. A file-endorsed copy of the complaint to be served on each individual defendant; 3. One copy of the complaint for the U.S. Marshal's file. 4. The completed "Notice of Submission of Documents" form enclosed herewith. PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) ______________________, ) No. 1: ___ -cv- ____________ ) Plaintiff/Petitioner, ) ) NOTICE OF SUBMISSION vs. ) OF DOCUMENTS ) ________________________, ) ) Defendant/Respondent. ) _____________________________) Plaintiff hereby submits the following documents in compliance with the court's order filed ___________________. SUMMONS IN A CIVIL CASE TO: YOU ARE HEREBY SUMMONED RETURN OF SERVICE ^1a (PRINT) Check one box below to indicate appropriate method of service STATEMENT OF SERVICE FEES DECLARATION OF SERVER Signature of Server Address of Server ______ completed USM-285 forms ______ copies of the complaint/amended complaint ______ completed Summons forms DATED: ________________ _________________________________ Signature of Plaintiff/Petitioner UNITED STATES DISTRICT COURT Eastern District of California V. CASE NUMBER: (Name and address of Defendant) and required to serve on PLAINTIFF'S ATTORNEY (name and address) an answer to the complaint which is served on you with this summons, within ____________________ days after service of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service. _________________________________________________________ ___________________________________________________________ CLERK DATE _________________________________________________________ (By) DEPUTY CLERK DATE Service of the Summons and complaint was made by me NAME OF SERVER TITLE Served personally upon the defendant. Place where served: _____________________________________________________________________ _______________________________________________________________________________________________________________________________ Left copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. Name of person with whom the summons and complaint were left: _________________________________________________________________ Returned unexecuted: __________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ Other (specify): ______________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ TRAVEL SERVICES TOTAL I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct. Executed on ______________________________ _________________________________________________________________ Date _________________________________________________________________