Opinion
No. CV 11-4871-PSG(CW)
10-18-2011
MOODY WOODROW TANKSLEY, Plaintiff, v. ATASCADERO STATE HOSPITAL, et al., Defendants.
Plaintiff has another pending civil rights action in this court, No. CV 11-6543. This Order concerns only No. CV 11-4871.
MEMORANDUM AND ORDER
DISMISSING COMPLAINT
WITH LEAVE TO AMEND
The pro se plaintiff is a person in state custody, at Atascadero State Hospital, seeking to proceed in forma pauperis, on a civil rights complaint naming governmental defendants. His complaint was received on June 2, 2011, and was filed on July 20, 2011 (as docket no. 3), pursuant to the court's Order re Leave to File Action Without Prepayment of Filing Fee. [Docket no. 2.] For reasons stated below, the Complaint is dismissed with leave to amend.
STANDARD OF REVIEW
Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc).
PLRA review for failure to state a claim applies the same standard applied in reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a claim for relief. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them." Id. "A Rule 12(b)(6) dismissal may be based on either a 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or defense that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984)(citing 2A Moore's Federal Practice ¶ 12.08).
Possible failure to state a claim is reviewed in light of the pleading standard of Fed. R. Civ. P. 8(a)(2), which requires that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has explained the pleading requirements of Rule 8(a)(2) and the requirements for surviving a Rule 12(b)(6) motion to dismiss in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)("Iqbal"), Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)(per curiam), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).
The pleading standard of Rule 8 does not require "detailed factual allegations." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555); see also Erickson, 551 U.S. at 93; Moss, 572 F.3d at 968. However, a complaint does not meet the pleading standard if it contains merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555). Instead, to comply with the requirements of Rule 8(a)(2) and survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the The pleading standard of Rule 8 does not require "detailed factual allegations." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555); see also Erickson, 551 U.S. at 93; Moss, 572 F.3d at 968. However, a complaint does not meet the pleading standard if it contains merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 555). Instead, to comply with the requirements of Rule 8(a)(2) and survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic, 550 U.S. at 556). This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts "merely consistent with" a theory of liability, it falls short of "the line between possibility and plausibility." Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic, 550 U.S. at 557).
In Starr v. Baca, 633 F.3d 1191 (9th Cir. 2011), the Ninth Circuit discussed apparent differences in recent Supreme Court cases on the pleading standard under Rule 8(a), but concluded that, "whatever the difference between these cases, we can at least state the following two principles common to all of them. First, allegations in a complaint . . . must be sufficiently detailed to give fair notice to the opposing party of the claim so that the party may effectively defend against it. Second, the allegations must be sufficiently plausible that it is not unfair to require the opposing party to be subjected to the expense of discovery." Starr, 633 F.3d at 1204.
The Supreme Court has set out a two-pronged approach for reviewing possible failure to state a claim. Iqbal, 129 S. Ct. at 1949-50; see also Moss, 572 F.3d at 969-70. First, the reviewing court may identify statements in a complaint that are actually conclusions, even if presented as factual allegations. Iqbal, 129 S. Ct. at 1949-50. Such conclusory statements (unlike factual allegations) are not entitled to a presumption of truth. Id. Here, it is the conclusory nature of the statements (rather than any fanciful or nonsensical nature) "that disentitles them to the presumption of truth." Id. at 1951. Second, the court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 1950; see also Moss, 572 F.3d at 969-70.
If the court finds that a complaint should be dismissed for failure to state a claim, the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)(en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, however, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Moss, 572 F.3d at 972.
PLAINTIFF'S ALLEGATIONS AND CLAIMS
Plaintiff is a patient at the Atascadero State Hospital. [Complaint ("Cpt.") at 2-3.] Plaintiff does not make clear whether he is also a prisoner, under a state court conviction, or is a non-prisoner detainee (either pre-trial or on a civil commitment), or is at Atascadero State Hospital on some other basis. In the caption of the Complaint Plaintiff names as defendants "Atascadero State Hospital Staff, et al." [Cpt. at 1.] In the body of the Complaint, Plaintiff names five individual defendants, in an individual capacity only, as: Joseph P., Kelly Barns, Bonnie Knoff, Mike Clement, and Neland D. [Cpt. at 3-4.]
Plaintiff alleges that, on May 23, 2011, he asked Mike Clement, Neland D., and other staff members for medication for his leg ulcers, and the staff members refused to provide medication. [Cpt. at 5.] Later, when Plaintiff was attempting to kill a fly on a window pane, staff members grabbed him by the hands, put him in restraints, and tied him to a chair. [Id.] This use of force made Plaintiff's leg ulcers open and start bleeding. [Id.] Kelly Barns and Joseph P. then kicked Plaintiff on the ulcers on his legs. [Id.]
Plaintiff claims that this was excessive force in violation of the Eighth Amendment, and seeks monetary damages under 42 U.S.C. § 1983. [Cpt. at 5-6.]
GROUNDS FOR DISMISSAL
To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff must plead that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the federal constitution or laws. See, e.g., Ortez v. Washington County, 88 F.3d 804, 810 (9th Cir. 1996). The plaintiff must set forth factual allegations with sufficient particularity to give a defendant "fair notice of the type of claim being pursued." Id. Here, Plaintiff has asserted a claim that he was subjected to excessive force, in violation of his constitutional rights, by defendants acting under color of state law.
On the other hand, Plaintiff has not articulated any claim against Atascadero State Hospital as an entity, and he has not alleged any facts showing that Defendants Bonnie Knoff, Mike Clement, and Neland D. caused Plaintiff to be subjected to excessive force. See, e.g., Redman v. County of San Diego, 942 F.2d 1435, 1439-40 (9th Cir. 1991)(en banc). Accordingly, Plaintiff's Complaint is subject to dismissal for failure to state a claim against those defendants.
On the other hand, Plaintiff may be able to amend to state a viable claim for excessive force against Defendants Joseph P., Kelly Barns. Therefore, Plaintiff will be given an opportunity to amend the Complaint to state a cognizable constitutional claim against a proper defendant or defendants. If he does so, he should make clear whether or not he is in custody as a convicted prisoner. This is significant because excessive force claims by prisoners fall under an Eighth Amendment standard, while excessive force claims by non-prisoner detainees fall under an Fourteenth Amendment, and the two standards are analyzed somewhat differently.
ORDERS:
It is therefore ORDERED as follows:
1. The Complaint is dismissed with leave to amend.
2. On or before November 17, 2011, Plaintiff may file a "First Amended Complaint" which corrects the defects discussed above and complies with the following requirements:
(a) The "First Amended Complaint" must bear the present case number "CV 11-4871-PSG(CW)."
(b) It must be complete in itself and may not incorporate by reference any part of the initial Complaint or any other complaint.
(c) Plaintiff may not use "et al." in the caption on p. 1, but must name in the caption each defendant against whom claims are stated in the First Amended Complaint. (The clerk uses the caption to make sure that defendants are correctly listed on the docket.)
(d) Plaintiff should attempt, if possible, to give the last names for any defendants now identified by initials (such as "Joseph P.").
(e) As noted above, it appears that Plaintiff can state an excessive
force claim against Joseph P. and Kelly Barns. If Plaintiff also names Bonnie Knoff, Mike Clement, or Neland D. as defendants, Plaintiff must allege facts showing how each such defendant used excessive force on him. (f) Plaintiff may not add other new defendants without the court's permission.
3. If Plaintiff files a timely amended complaint, the court will issue further orders as appropriate; if not, the magistrate judge will recommend that this action be dismissed, without prejudice, for failure to prosecute and/or failure to comply with court orders, as well as for the reasons stated above.
4. The clerk shall serve this Memorandum and Order on Plaintiff.
CARLA M. WOEHRLE
United States Magistrate Judge