Travis Williams v. John Soto et al

Filing 8

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Complaint (Prisoner Civil Rights), 1 (Attachments: # 1 Civil Rights Form, # 2 Notice of Dismissal Form) (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TRAVIS WILLIAMS,

)
)
Plaintiff,
)
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v.
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)
JOHN SOTO, et al.,
)
)
Defendants.
)
______________________________)

No. CV 15-05691-AB (KK)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

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Plaintiff Travis Williams (“Plaintiff”), a state prisoner

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proceeding pro se and in forma pauperis, filed a Complaint pursuant to

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42 U.S.C. § 1983 (“Section 1983”), against four defendants employed as

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Correctional Officers by the California Department of Corrections and

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Rehabilitation: (1) John Soto, the warden at Lancaster State Prison;

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(2) Lieutenant G. Marshall; (3) Sergeant G. Rodriguez; and (4)

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Officer Moisa.

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against Plaintiff, threatened retaliation against Plaintiff if he

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pursued his allegations of excessive force, and attempted to cover up

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the alleged excessive force.

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pursuant to 28 U.S.C. § 1915(e)(2).

The Complaint alleges defendants used excessive force

The Court has now screened the Complaint

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Based upon the reasons set forth

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below, the Court dismisses the Complaint with leave to amend.

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I.

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PLAINTIFF’S ALLEGATIONS

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The Complaint names four defendants: John Soto, the warden at

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Lancaster State Prison, Lieutenant G. Marshall, Sergeant G. Rodriguez,

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and Correctional Officer Moisa.

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each of the four named defendants in both their individual and

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official capacities.

Complaint at 4-5.

Plaintiff sues

Id.

Plaintiff alleges he was assaulted by Officer Moisa on June 21,

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2015.

Id. at 1-4.

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walking to the chow line, Officer Moisa hit Plaintiff in the face,

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again in the neck, and then twisted his right arm behind his back.

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Id. at 2.

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him with “chemical pepper spray MK-9 Magnum Foam.”

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alleges that after being sprayed with pepper spray, he was told “to

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turn around and lay out, which [he] did.”

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escorted to the program office and placed in a holding cell.

According to the Complaint, as Plaintiff began

When Plaintiff jumped backwards, Officer Moisa “attacked”

Id.

Id.

Plaintiff

Plaintiff was then
Id.

After approximately one hour, Sergeant Rodriguez approached

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Id.

When Plaintiff explained he

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Plaintiff and asked what happened.

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had been subjected to excessive force, Sergeant Rodriguez told

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Plaintiff he “would be going to the hole, [his] property would be

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lost, and [he] would get it some more if [he] went any further with

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these allegations.”

Id.

Plaintiff alleges that “[b]ecause of the threat of further

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physical, mental, and emotional harm, [he] did as instructed.”

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Plaintiff alleges he was instructed to say on video camera that

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neither Officer Moisa, nor any other officer, used excessive force.

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Id.
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Id.

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Plaintiff alleges John Soto, the warden, “failed to properly

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train his officers in the use of force (reasonable force) to maintain

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control of a situation” and “failed to take corrective action after

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the incident was reported.”

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Marshall was aware of Sergeant Rodriguez’ threats and did nothing, and

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failed to take corrective action after learning of the excessive force

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allegations.

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Id. at 6.

Plaintiff alleges Lieutenant

Id. at 2,6.

Lastly, Plaintiff alleges “the above named officers attempted to
cover up the excessive use of force (staff misconduct) instead of
taking corrective action.”

Id. at 6.

Plaintiff’s sole claim is for violation of the Eighth Amendment
Id.

Plaintiff seeks monetary relief and

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by use of excessive force.

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requests that all defendants be reprimanded and relieved of their

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duties.

Id. at 7.

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II.

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STANDARD OF REVIEW

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As Plaintiff is proceeding in forma pauperis, the court must

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screen the Complaint, and is required to dismiss the case at any time

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if it concludes the action is frivolous or malicious, fails to state a

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claim on which relief may be granted, or seeks monetary relief against

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a defendant who is immune from such relief.

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1915(e)(2)(B); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998).

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See 28 U.S.C. §

In determining whether a complaint fails to state a claim for

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purposes of screening under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court

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applies the same pleading standard from Rule 8 of the Federal Rules of

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Civil Procedure as it would when evaluating a motion to dismiss under

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Federal Rule of Civil Procedure 12(b)(6).
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See Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012).
Under Rule 8(a), a complaint must contain a “short and plain

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statement of the claim showing that the pleader is entitled to

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relief.”

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failure to state a claim “where there is no cognizable legal theory or

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an absence of sufficient facts alleged to support a cognizable legal

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theory.”

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(citation and internal quotation marks omitted).

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whether a complaint states a claim, a court must accept as true all of

Fed. R. Civ. P. 8(a)(2).

A complaint may be dismissed for

Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007)
In considering

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the material factual allegations in it.

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889, 892-93 (9th Cir. 2011).

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true “allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences.”

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536 F.3d 1049, 1055 (9th Cir. 2008) (citation and internal quotation

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marks omitted).

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factual allegations, it “must contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its

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face.”

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and internal quotation marks omitted).

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when it “allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”

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internal quotation marks omitted).

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sufficient allegations of underlying facts to give fair notice and to

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enable the opposing party to defend itself effectively.”

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Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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Hamilton v. Brown, 630 F.3d

However, the court need not accept as

In re Gilead Scis. Sec. Litig.,

Although a complaint need not include detailed

Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation
A claim is facially plausible

Id. (citation and

The complaint “must contain

Starr v.

“A document filed pro se is to be liberally construed, and a pro

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se complaint, however inartfully pleaded, must be held to less

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stringent standards than formal pleadings drafted by lawyers.”
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Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d

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1081 (2007)(citations and internal quotation marks omitted); Woods v.

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Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).

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obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt.”

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1212 (9th Cir. 2012) (citation and internal quotation marks omitted).

The Court has “an

Akhtar v. Mesa, 698 F.3d 1202,

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III.

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DISCUSSION

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A.

Plaintiff’s Official Capacity Claims
1.

Claims

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Requirements for Stating Section 1983 Official Capacity

The U.S. Supreme Court has held an “official-capacity suit is, in

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all respects other than name, to be treated as a suit against the

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entity.”

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L. Ed. 2d 114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72,

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105 S. Ct. 873, 83 L. Ed. 2d 878 (1985); Larez v. City of Los Angeles,

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946 F.2d 630, 646 (9th Cir. 1991).

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the official personally, for the real party in interest is the

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entity.”

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liability exists under Section 1983, a municipality is liable only for

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injuries that arise from an official policy or longstanding custom.

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694,

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98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see also City of Canton v.

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Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).

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A plaintiff must show “that a [county] employee committed the alleged

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constitutional violation pursuant to a formal governmental policy or a

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longstanding practice or custom which constitutes the standard

Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87

Such a suit “is not a suit against

Graham, 473 U.S. at 166.

Because no respondeat superior

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operating procedure of the local governmental entity.”

Gillette v.

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Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal quotation marks

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omitted).

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cause in fact and (2) the proximate cause of the constitutional

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deprivation.”

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2.

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Here, Plaintiff sues each defendant in his official capacity, but

In addition, he must show that the policy was “(1) the

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

Analysis

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fails to identify any official policy or longstanding custom as the

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cause of any constitutional deprivation.

In fact, the thrust of

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Plaintiff’s Complaint is that defendants Marshall, Soto, Rodriguez and

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Moisa were acting in violation of the relevant policies regarding

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excessive force.

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actions were committed in violation the Eighth Amendment and the Law

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Enforcement Code of Ethics). Thus, having failed to identify a custom

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or policy, Plaintiff’s official capacity claim against defendants

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Soto, Marshall, Rodriguez and Moisa must be dismissed.

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B.

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See e.g. Complaint at 6 (alleging defendants’

Plaintiff’s Individual Capacity Claims
In contrast to suits against governmental officers in their

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official capacities, individual capacity suits “seek to impose

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personal liability upon a government official for actions he takes

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under color of state law.”

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Graham, 473 U.S. at 165.

“A person deprives another of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates

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in another’s affirmative acts, or omits to perform an act which he is

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legally required to do that causes the deprivation of which [the

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plaintiff complains].”

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1978).

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in the alleged rights deprivation . . . .”

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

In short, “there must be a showing of personal participation

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Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002) (internal citation omitted).
1.

Plaintiff’s Eighth Amendment Excessive Force Claim
a.

Legal Standard

“When prison officials use excessive force against prisoners,

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they violate the inmates’ Eighth Amendment right to be free from cruel

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and unusual punishment.”

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Cir. 2002).

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courts are instructed to examine: (1) the extent of the injury

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suffered by an inmate; (2) the need for application of force; (3) the

Clement v. Gomez, 298 F.3d 898, 903 (9th

In determining whether the use of force is excessive,

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relationship between that need and the amount of force used; and (4)

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whether the force was applied in a good faith effort to maintain and

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restore discipline.

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995, 117 L. Ed. 2d 156 (1992).

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Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct.

As with any Eighth Amendment violation, Plaintiff must prove the

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“unnecessary and wanton infliction of pain.”

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U.S. 312, 319-20, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986).

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accident nor negligence constitutes cruel and unusual punishment,

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because “[i]t is obduracy and wantonness, not inadvertence or error in

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good faith, that characterize the conduct prohibited by the Cruel and

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Unusual Punishments Clause [of the Eighth Amendment].”

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Whitley v. Albers, 475
Neither

Id.

Not “every malevolent touch by a prison guard gives rise to a

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federal cause of action.”

Hudson, 503 U.S. at 9.

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Amendment's prohibition of cruel and unusual punishments necessarily

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excludes from constitutional recognition de minimis uses of physical

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force, provided that the use of force is not of a sort repugnant to

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the conscience of mankind.”

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a “push or shove” that causes no discernible injury almost certainly

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fails to state a valid excessive force claim.

Id. at 9-10.

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“The Eighth

An inmate who complains of

Id. (quoting Johnson v.

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Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

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alleged to have resulted from a personal altercation rather than from

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disciplinary action, the “core judicial inquiry” is not whether a

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certain quantum of injury was sustained, but rather “whether force was

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applied . . . maliciously and sadistically to cause harm.”

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Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010) (per

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curiam); see also Hudson, 503 U.S. at 7; Oliver v. Keller, 289 F.3d

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623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard

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“examines whether the use of physical force is more than de minimis”).

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Where the force is

Wilkins v.

“[V]erbal harassment generally does not violate the Eighth
Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)

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Amendment.”

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opinion amended on denial of reh'g, 135 F.3d 1318 (9th Cir. 1998)

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(holding disrespectful and assaultive comments by prison guard not

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enough to implicate Eighth Amendment).

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generally “sufficiently serious” to violate the Eighth Amendment.

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Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d

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811 (1994); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per

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curiam).

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Neither are mere threats

Also, a police officer who is merely a bystander to his

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colleagues’ conduct cannot be found to have caused any injury.

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Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009); see also

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Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 1996) (rejecting a jury

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instruction that allowed the jury to “lump all the defendants

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together, rather than require it to base each individual’s liability

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on his own conduct”).

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“integral participation” of the officers in the alleged constitutional

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violation.

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Cir. 2008) (detective who was not present when suspect was arrested,

Instead, a plaintiff must establish the

Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th

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did not instruct other detectives to arrest suspect, and was not

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consulted by other detectives before arrest was not “integral

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participant” in use of excessive force).

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b.

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Excessive Force Claim against Defendant Moisa

Here, Plaintiff alleges defendant Moisa hit Plaintiff in the

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face, again in the neck, and then twisted his right arm behind his

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back.

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“attacked” him with “chemical pepper spray MK-9 Magnum Foam.”

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Plaintiff alleges that after being sprayed with pepper spray, he was

Complaint at 2.

When Plaintiff jumped backwards, Officer Moisa

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told “to turn around and lay out, which [he] did.”

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Hudson factors, the Court finds these allegations sufficiently state a

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Section 1983 claim of excessive force against defendant Moisa in his

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individual capacity.
c.

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Id.

Id.

Based on the

See Hudson, 503 U.S. at 7.

Excessive Force Claim against Defendants Soto,
Marshall, and Rodriguez

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Plaintiff alleges defendant Rodriguez threatened to send

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Plaintiff “to the hole,” and further physical violence.

Complaint at

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2.

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for violation of the Eighth Amendment, the Complaint fails to state an

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excessive force claim against defendant Rodriguez due to his alleged

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threats.

Because threats alone are generally insufficient to state a claim

Keenan, 83 F.3d at 1092; Farmer, 114 S. Ct. at 1977.

Additionally, Plaintiff does not allege defendants Soto,

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Marshall, or Rodriguez were present during the assault.

In fact,

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Plaintiff specifically alleges defendant Rodriguez approached him

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while he was in the holding cell about an hour after the assault.

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Complaint at 2.

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to take corrective action after learning of the assault.

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6.

Plaintiff alleges defendants Soto and Marshall failed
Complaint at

Because defendants Rodriguez, Soto, and Marshall were not present
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during the assault and were not integral participants in the assault,

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the Complaint fails to state an excessive force claim against

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defendants Rodriguez, Soto, or Marshall.

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2.

Torres, 548 F.3d at 1206.

Plaintiff’s First Amendment Retaliation Claims against
Defendant Rodriguez

While the statement of Plaintiff’s claims in the Complaint only

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alleges a violation of the Eighth Amendment by use of excessive force,

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it appears from the factual allegations that Plaintiff is asserting a

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First Amendment retaliation claim against defendant Rodriguez.

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Complaint at 2, 4, 6.

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be accorded the “benefit of any doubt” and pro se complaints are to be

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liberally construed “however inartfully pleaded,” the Court construes

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the Complaint as alleging a claim for violation of the First Amendment

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against defendant Rodriguez.

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a.

Accordingly, because pro se plaintiffs are to

Erickson, 551 U.S. at 94.

Legal Standard

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Allegations of retaliation against a prisoner’s First Amendment

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rights to speech or to petition the government may support a Section

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1983 claim.

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Prisoners have a clearly established First Amendment right to file

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prison grievances and to be free from retaliation for doing so.

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) the prisoner engaged in protected conduct;

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(2) an assertion that a state actor took some adverse action against

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an inmate; (3) the adverse action was “because of” the prisoner’s

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protected conduct; (4) the adverse action chilled the inmate’s

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exercise of his First Amendment rights; and (5) the action did not

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reasonably advance a legitimate correctional goal.

See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).

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Within the

Rhodes v.

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Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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The Ninth Circuit has held that “an objective standard governs

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the chilling inquiry; a plaintiff does not have to show that ‘his

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speech was actually inhibited or suppressed,’ by the adverse action

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but rather that the action at issue ‘would chill or silence a person

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of ordinary firmness from future First Amendment activities.’”

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Brodheim, 584 F.3d at 1270 (quoting Rhodes, 408 F.3d at 568–69); see

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also Pinard v. Clatskanie School District, 467 F.3d 755, 770 (9th Cir.

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2006).

Threats of physical harm, while insufficient on their own to

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constitute a violation of the Eighth Amendment, may constitute an

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“adverse action” in the context of a First Amendment retaliation

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claim.

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threat to hit plaintiff in the mouth was an “adverse action”); see

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also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (holding the

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mere threat of prison transfers can constitute adverse action for

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purposes of retaliation claims).

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inmate grievances are “protected activities” and it is impermissible

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for prison officials to retaliate against inmates for engaging in

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these activities.

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F.3d 1167, 1171 (9th Cir. 2004) (holding placement in administrative

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segregation for engaging in such protected activities constitutes an

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“adverse action” under Rhodes). “Because direct evidence of

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retaliatory intent rarely can be pleaded in a complaint, allegation of

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a chronology of events from which retaliation can be inferred is

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sufficient to survive dismissal.”

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65 F.3d at 808 (“timing can properly be considered as circumstantial

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evidence of retaliatory intent”).

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///

Watison, 668 F.3d at 1115-16 (finding defendant officer’s

Both litigation in court and filing

See Rhodes, 408 F.3d at 567; Austin v. Terhune, 367

Watison, 668 F.3d at 1114; Pratt,

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b. Analysis

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Here, Plaintiff alleges he told defendant Rodriguez and a nurse

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“in complete detail that officer Moisa used extreme excessive force

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and it was not warranted.”

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Exhibit A to the Complaint a copy of an inmate grievance filled out on

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June 21, 2015, the date of the assault, describing the incident in

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detail.

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protected activity of filing an inmate grievance.

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Id. at Ex. A.

Complaint at 2.

He also attaches as

Plaintiff was therefore engaged in the

Second, Plaintiff alleges defendant Rodriguez, a Sergeant at

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Lancaster State Prison, threatened him with placement in

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administrative segregation and physical harm.

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has alleged that a state actor took adverse action against him.

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Therefore, Plaintiff

Third, Plaintiff alleges Rodriguez threatened him with placement

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in administrative segregation and physical harm “if [he] went any

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further with these allegations [of excessive force].”

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Hence, Plaintiff has alleged the adverse action was “because of” the

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prisoner’s protected conduct.

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Complaint at 2.

Fourth, Plaintiff sufficiently pleads chilling conduct that

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“would chill or silence a person of ordinary firmness” - threats of

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physical violence.

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See Watison, 668 F.3d at 1116.

Finally, the facts Plaintiff alleged implicitly pleaded the fifth

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element, because threatening physical violence in retaliation for

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engaging in conduct protected by the First Amendment serves no

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correctional interest.

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throughout the incident.

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to infer there was no legitimate correctional goal threatening

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violence against Plaintiff.

Id.

Plaintiff also alleges he complied

Complaint at 2.

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Therefore, it is reasonable

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Consequently, the Court finds these allegations sufficiently

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state a Section 1983 claim of retaliation against defendant Rodriguez

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in his individual capacity.

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IV.

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LEAVE TO FILE A FIRST AMENDED COMPLAINT

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For the foregoing reasons, the Complaint is subject to dismissal.

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As the court is unable to determine whether amendment would be futile,

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leave to amend is granted.

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248 (9th Cir. 1995) (per curiam).

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See Lucas v. Dep’t of Corr., 66 F.3d 245,

Accordingly, IT IS ORDERED THAT within 21 days of the service
date of this Order:

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1) Plaintiff may file a First Amended Complaint (“FAC”) to

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attempt to cure the deficiencies with his official capacity and

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excessive force claims.

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with a Central District of California Civil Rights Complaint Form, CV-

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66, to facilitate Plaintiff’s filing of an FAC if he elects to proceed

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with this action.

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The Clerk is directed to provide Plaintiff

Plaintiff is strongly encouraged to use that form.

2) Alternatively, Plaintiff may voluntarily dismiss all of the

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identified deficient claims and proceed solely on his remaining

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claims.

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(i) all claims against defendants Soto, Marshall, Rodriguez, and Moisa

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in their official capacities, and (ii) his excessive force claim

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against defendants Soto, Marshall, and Rodriguez in their individual

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capacities.

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against defendant Moisa in his individual capacity, and (ii)

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retaliation against defendant Rodriguez in his individual capacity.

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If Plaintiff elects to dismiss the deficient claims, he should file

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within 21 days of the service date of this Order, a document captioned

In other words, Plaintiff must file a voluntary dismissal of

Plaintiff’s remaining claims are (i) excessive force

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“Voluntary Dismissal” in which he identifies the claims he is

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dismissing from the action. The Clerk is directed to provide Plaintiff

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with a Notice of Voluntary Dismissal Form, CV-09.

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3) If Plaintiff chooses to file a FAC, the FAC should bear the

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docket number assigned to this case, be labeled “First Amended

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Complaint,” and be complete in and of itself without reference to the

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Complaint or any other pleading, attachment, or document.

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Plaintiff is admonished that if he fails to timely file a
sufficient FAC or notice of voluntary dismissal of the deficient

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claims, the Court will recommend that this action be dismissed with

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prejudice for failure to diligently prosecute.

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DATED: September 8, 2015
HON. KENLY KIYA KATO
UNITED STATES MAGISTRATE JUDGE

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