Larry Rafael Vigal v. Holland et al

Filing 10

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge John E. McDermott 4 . The First Amended Complaint is DISMISSED WITH LEAVE TO AMEND. If Plaintiff desires to pursue this action, he is ORDERED to file a Second Amended Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies discussed above. (san)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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LARRY RAFAEL VIGAL,
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Plaintiff,
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v.
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HOLLAND, et al.,
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Defendants.
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Case No. CV 13-1970-FMO (JEM)
MEMORANDUM AND ORDER
DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

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On May 8, 2013, Larry Rafael Vigal (“Plaintiff”), proceeding pro se and in forma
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pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (“Complaint”). On May
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20, 2013, the Court dismissed the Complaint with leave to amend. Plaintiff filed a First
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Amended Complaint (“FAC”) on June 3, 2013.
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SCREENING STANDARDS
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In accordance with the provisions governing in forma pauperis proceedings, the
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Court must screen the Complaint before ordering service to determine whether the action:
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(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3)
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seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §
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1915(e)(2). This screening is governed by the following standards:
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A complaint may be dismissed as a matter of law for failure to state a claim for two
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reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has

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alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't,

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901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on

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which relief may be granted, allegations of material fact are taken as true and construed in

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the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

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1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual

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allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “‘[A] liberal interpretation of

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a civil rights complaint may not supply essential elements of the claim that were not initially

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pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting

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Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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Although a complaint "does not need detailed factual allegations" to survive

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dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in

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Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations

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sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely

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possible or conceivable. Id. at 557, 570.

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Simply put, the complaint must contain "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents

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enough facts “to draw the reasonable inference that the defendant is liable.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability requirement, but “it asks

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for more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint

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that pleads facts that are merely consistent with liability stops short of the line between

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possibility and plausibility. Id.

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In a pro se civil rights case, the complaint must be construed liberally to afford

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plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621,

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623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured,

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pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an

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opportunity to amend prior to the dismissal of an action. Lucas v. Dept. of Corrections, 66
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F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Karim-Panahi, 839 F.2d at 623. Only if

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it is absolutely clear that the deficiencies cannot be cured by amendment should the

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complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States,

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70 F.3d 1103, 1106 (9th Cir. 1995); McQuillon v. Schwarzenegger, 369 F.3d 1091, 1099

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(9th Cir. 2004) (where amendment would be futile, complaint may be dismissed without

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leave to amend).
After careful review and consideration of the Complaint under the relevant standards

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and for the reasons discussed below, the Court finds that the FAC must be DISMISSED

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WITH LEAVE TO AMEND.
PLAINTIFF’S ALLEGATIONS

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Plaintiff alleges the following facts in support of his claim in Count I for excessive

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force:

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I was called to Board Room by Officer Perez. He then asked if I was a

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Northern Rider Disruptive Group gang member. I told him no. He continue to

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ask me questions of where I was from, at which time he was on a computer.

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He then got up and said his flashlight was older than me and I was a lying

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piece of shit and that I was a Northern Rider. He then grabbed me by my hair

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and slapped me on the left side of my face. I asked him what that was for and

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he said for lying. He then grabbed his mag light hitting me with the end on the

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left side of my face where my eye is at, causing me to get a permanent black

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eye because of a fracture in the bone! He then said I was going to be his bitch

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and said for me to get out of his office.

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(FAC at 5 (minor spelling and grammatical errors corrected).) With respect to the First

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Amendment retaliation claim in Count II, Plaintiff alleges as follows:

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I filed a 602 on Officer Perez, Clayton, and Carol, for slapping

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me, hitting me with a flashlight, and abusing me verbally, physically,

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and mentally. I placed the 602 in the designated area in front of the

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unit office. The next day I was called to the Sergeant’s office. They
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then told me that I was a bitch, hitting me with the 602 in my face

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(Sergeant Westergreen). He then said I would be sorry if Sonny

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[Perez] found out about the 602 on him (Sonny Perez was not working).

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He then said I should take my beating like a man, slapped me, and said

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if I moved an inch that I would be facing a new legal case for assault on

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an officer. I then endured more verbal abuse and slaps from the

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officers. Sergeant Westergreen then got my 602 crumbled and threw it

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in a trash can and said the next time I filed on one of his officers I would

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not be let off the hook with a couple of slaps, and that I would be taken

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out on a stretcher. The correctional officers still work here and I am in

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fear daily.

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(FAC at 7 (minor spelling and grammatical errors corrected).)
Plaintiff names Officers Sonny Perez, Clayton, and Carol, and Sergeant Westergreen

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as defendants in their individual and official capacities. (FAC at 3-4.) Plaintiff seeks

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compensatory damages and injunctive relief. (FAC at 6, 8.)
DISCUSSION

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Having reviewed the FAC pursuant to the standards set forth above, the Court has

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determined that the FAC does not withstand screening for the following reasons:

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I.

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Plaintiff Must Name All Defendants In the Caption
Plaintiff does not name any defendants in the caption of the FAC. (FAC at 1.) In the

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body of the FAC, however, Plaintiff makes allegations against numerous defendants not

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named in the caption, including: (1) Sonny Perez; (2) CCI Correctional Officer Clayton; (3)

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CCI Correctional Officer Carol; and (4) CCI Sergeant Westergreen.

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The individuals or entities named as “defendants” only in the body of the Complaint

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have not been presented properly as parties, and the Court does not recognize them as

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defendants in this action. If Plaintiff files an amended complaint, he must include in the

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caption the names of each defendant against whom he is asserting a claim. See Fed. R.

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Civ. P. 10(a); Local Rule 11-3.8(d); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63
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(9th Cir. 1992) (dismissing action for refusal to comply with court orders to name defendants

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in the caption). The Court will not order the United States Marshal to serve the amended

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complaint on any named defendant not identified in the caption.

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II.

Plaintiff Cannot State a Claim For Damages
Against Defendants In Their Official Capacities

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The Supreme Court has held that an "official-capacity suit is, in all respects other
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than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159,
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166 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Larez v. City of Los
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Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Such a suit "is not a suit against the official
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personally, for the real party in interest is the entity." Graham, 473 U.S. at 159. Each
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Defendants are officers or agents of the California Department of Corrections and
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Rehabilitation (“CDCR”). Thus, Plaintiff’s claims against Defendants in their official
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capacities are tantamount to claims against CDCR.
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States, state agencies, and state officials sued in their official capacities are not
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persons subject to civil rights claims for damages under 42 U.S.C. § 1983. Will v. Michigan
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Department of State Police, 491 U.S. 58, 64-66 (1989); see also Hafer v. Melo, 502 U.S. 21,
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30 (1991) (clarifying that Eleventh Amendment does not bar suits against state officials sued
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in their individual capacities, nor does it bar suits for prospective injunctive relief against
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state officials sued in their official capacities). CDCR is an agency of the State of California
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and, therefore, is entitled to Eleventh Amendment immunity. See Brown v. California
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Department of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (CDCR is a state agency
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entitled to Eleventh Amendment immunity).
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To overcome the Eleventh Amendment bar on federal jurisdiction over suits by
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individuals against a State and its instrumentalities, either the State must have consented to
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waive its sovereign immunity or Congress must have abrogated it; moreover, the State's
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consent or Congress' intent must be “unequivocally expressed.” See Pennhurst State
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School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). While California has consented
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to be sued in its own courts pursuant to the California Tort Claims Act, such consent does
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not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., Los

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Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988). Moreover, Congress has not abrogated

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State sovereign immunity against suits under 42 U.S.C. § 1983.
Accordingly, Plaintiff’s claims for money damages against the Defendants in their

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official capacities are barred by the Eleventh Amendment.

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III.

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Plaintiff Has Failed to Plead Sufficient Facts
to Show How Defendants Clayton and Carol
Participated In the Alleged Constitutional Violations

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Liability under § 1983 arises upon a showing of personal participation by the

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defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). There is no respondeat

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superior liability under section 1983. Ybarra v. Reno Thunderbird Mobile Home Village, 723

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F.2d 675, 680-81 (9th Cir. 1984). To state a claim under section 1983, a plaintiff must

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allege that (1) the defendant acted under color of state law, and (2) the defendant deprived

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him of rights secured by the Constitution or federal law. Long v. County of Los Angeles,

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442 F.3d 1178, 1185 (9th Cir. 2006). A person deprives another of a constitutional right

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where that person “does an affirmative act, participates in another's affirmative acts, or

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omits to perform an act which [that person] is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). “The requisite causal connection can be established not only by some kind of direct,

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personal participation in the deprivation, but also by setting in motion a series of acts by

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others which the actor knows or reasonably should know would cause others to inflict the

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constitutional injury.” Id. at 743-44.

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The FAC is devoid of any specific factual allegations that Defendants Carol and

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Clayton engaged in any affirmative act, participated in another's affirmative act, or failed to

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perform an act that they were legally required to do that caused the deprivations of which

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Plaintiff complains. Plaintiff’s First Amendment retaliation claim alleges only that he “filed a

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602 on officer Perez, Clayton, and Carol for slapping [him], hitting [him] with [a] flashlight,

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and abusing [him] physically and mentally.” (FAC at 7.) However, the only allegations of

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First Amendment retaliation for filing a grievance contained in the FAC concern Sergeant
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Westergreen. (FAC at 7.) Likewise, Plaintiff’s excessive force claim only sets forth

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allegations against Defendant Perez. (FAC at 5.) Thus, there is an insufficient causal

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connection between the constitutional deprivations alleged in the first and second claims for

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relief and Defendants Carol and Clayton. Plaintiff may amend his complaint to allege facts

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demonstrating how Defendants Carol and Clayton are responsible for the alleged

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constitutional deprivations in accordance with the requirements described herein.

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IV.

First Amendment Retaliation Claim
Against Sergeant Westergreen

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Under the First Amendment, prison officials may not retaliate against prisoners for
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initiating litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559,
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568 (9th Cir. 2005). A viable claim of First Amendment retaliation entails five basic
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elements: (1) an assertion that a state actor took some adverse action against an inmate (2)
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because of (3) the inmate's protected conduct and that the adverse action (4) chilled the
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inmate's exercise of his First Amendment rights and (5) did not reasonably advance a
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legitimate penological purpose. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)
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(quoting Rhodes, 408 F.3d at 567–68).
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The Court finds that Plaintiff's allegations are sufficient at the screening stage to state
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a retaliation claim against Sergeant Westergreen, in violation of the First Amendment. See
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Watison v. Carter, 668 F.3d 1108, 1115-116 (9th Cir. 2012) (plaintiff properly stated a First
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Amendment retaliation claim when he claimed that a correctional officer retaliated against
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Plaintiff for filing grievances against the officer when he “became very angry with [plaintiff],
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walked directly in [plaintiff's] face and stated ‘your emergency grievance isn't going to stand,’
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and threatened to hit [plaintiff] in the mouth for a complaint [plaintiff] was in the process of
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filing against [the officer]”) (some internal quotation marks and brackets omitted).
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V.

Eighth Amendment Excessive Force Claim
Against Officer Perez

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The Cruel and Unusual Punishments Clause of the Eighth Amendment protects

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prisoners from the use of excessive physical force. Wilkins v. Gaddy, 559 U.S. 34, 36

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(2010) (per curiam); Hudson v. McMillian, 503 U.S. 1, 8–9 (1992). What is necessary to
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show sufficient harm under the Eighth Amendment depends upon the claim at issue, with

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the objective component being contextual and responsive to contemporary standards of

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decency. Hudson, 503 U.S. at 8 (quotation marks and citations omitted). For excessive

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force claims, the core judicial inquiry is whether the force was applied in a good-faith effort

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to maintain or restore discipline, or maliciously and sadistically to cause harm. Wilkins, 559

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U.S. at 37 (quoting Hudson, 503 U.S. at 7) (quotation marks omitted).
Not every malevolent touch by a prison guard gives rise to a federal cause of action.

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Wilkins, 559 U.S. at 37-38 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted).

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Necessarily excluded from constitutional recognition is the de minimis use of physical force,

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provided that the use of force is not of a sort repugnant to the conscience of mankind. Id.

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(quoting Hudson, 503 U.S. at 9–10) (quotations marks omitted). In determining whether the

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use of force was wanton and unnecessary, courts may evaluate the extent of the prisoner's

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injury, the need for application of force, the relationship between that need and the amount

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of force used, the threat reasonably perceived by the responsible officials, and any efforts

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made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (quotation marks

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and citations omitted).
While the absence of a serious injury is relevant to the Eighth Amendment inquiry, it

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does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause

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harm always violates contemporary standards of decency. Wilkins, 559 U.S. at 37-38

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(quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Thus, it is the use of force

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rather than the resulting injury which ultimately counts. Id. at 38.
The Court finds that Plaintiff's allegations are sufficient at the screening stage to state

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a claim against Officer Perez for use of excessive force, in violation of the Eighth

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Amendment.
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For the reasons set forth herein, the FAC is DISMISSED WITH LEAVE TO AMEND.

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If Plaintiff desires to pursue this action, he is ORDERED to file a Second Amended

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Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies

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discussed above. Specifically:

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Plaintiff shall name all defendants in the caption of the SAC.

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Plaintiff may attempt to state sufficient facts to support claims against

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Defendants Carol and/or Clayton in accordance with the standards set

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forth above. Alternatively, Plaintiff may choose to drop these

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defendants and re-file this action only against Officer Perez and
Sergeant Westergreen.

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Plaintiff may elect to pursue claims against the named defendants only

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in their individual capacities. This would appear to be the proper course

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of action in light of the facts stated.

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If Plaintiff chooses to file a Second Amended Complaint, it should: (1) bear the

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docket number assigned in this case; (2) be labeled "Second Amended Complaint"; (3); be

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filled out exactly in accordance with the directions on the form; and (4) be complete in and of

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itself without reference to the previous complaints or any other pleading, attachment or

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document. The Clerk is directed to provide Plaintiff with a blank Central District of California

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civil rights complaint form, which Plaintiff must fill out completely and resubmit.

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Plaintiff is admonished that, if he fails to file a Second Amended Complaint by

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the deadline set herein, the Court will recommend that this action be dismissed on

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the grounds set forth above for failure to prosecute and failure to comply with a

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Court order.

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/s/ John E. McDermott
JOHN E. MCDERMOTT
UNITED STATES MAGISTRATE JUDGE

DATED: August 2, 2013

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