Chaz Jamar MacFalling v. D. Nettleton et al

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Alexander F. MacKinnon: Any First Amended Complaint shall be filed no later than 30 days after the date of this Order. (Attachments: # 1 CV-66 CV Rights Complaint Form, # 2 Form CV-09 Notc of Dismissal) (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHAZ J. MacFALLING, 12 13 14 Plaintiff, v. Case No. CV 17-02399 SVW (AFM) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND D. NETTLETON, et al., 15 Defendants. 16 17 On March 28, 2017, plaintiff, an inmate presently held at the Wasco State 18 Prison in Wasco, California, filed a Complaint in this pro se civil rights action 19 pursuant to 42 U.S.C. § 1983. He subsequently was granted leave to proceed 20 without prepayment of the full filing fee. The Complaint arises from incidents that 21 occurred while plaintiff was held at the California Men’s Colony (“CMC”). (ECF 22 No. 1 at 3.) 23 Biallas, M. DeCastro, R. Nicholson, C. LaPraim, T. Lawsford, M. Grijalva, and 24 Acting Associate Warden J. Core. All defendants are named in their official as well 25 as individual capacities. (Id. at 3-4.) Plaintiff names as defendants correctional officers D. Nettleton, 26 Plaintiff’s claims arise from an incident that occurred at CMC on 27 September 22, 2016, when correctional officers removed a sign with a message 28 about “Black Lives Matter” that plaintiff was wearing taped to the back of his shirt 1 while he was working on the kitchen loading dock. After plaintiff refused a request 2 to remove the sign, plaintiff was searched, handcuffed, and locked in a small cell 3 for three and a half hours. Plaintiff alleges that the handcuffs were applied too 4 tightly and caused pain, cuts, and abrasions. Plaintiff subsequently was placed in 5 Administrative Segregation (“Ad. Seg.”). On October 8, 2016, plaintiff was found 6 guilty of a Rule Violation Report (“RVR”), and he was assessed a loss of credit. 7 (Id. at 4-11.) 8 deliberate indifference (id. at 11-12); a “Claim No. 2” against LaPraim for placing 9 him into Ad. Seg. as retaliation for plaintiff wearing the sign (id. at 12-13); and a 10 “Claim No. 3” for assessing plaintiff with, inter alia, a “loss of credit because of 11 plaintiff wearing a sign” (id. at 13). Plaintiff seeks compensatory and punitive 12 damages. (Id. at 14.) Plaintiff purports to raise a “Claim No. 1” for retaliation and 13 In accordance with the terms of the “Prison Litigation Reform Act of 1995” 14 (“PLRA”), the Court has screened the Complaint prior to ordering service for 15 purposes of determining whether the action is frivolous or malicious; or fails to 16 state a claim on which relief may be granted; or seeks monetary relief against a 17 defendant who is immune from such relief. 18 1915A(b); 42 U.S.C. § 1997e(c)(1). The Court’s screening of the pleading under 19 the foregoing statutes is governed by the following standards. A complaint may be 20 dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of 21 a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. 22 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also 23 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (when determining whether 24 a complaint should be dismissed for failure to state a claim under the PLRA, the 25 court applies the same standard as applied in a motion to dismiss pursuant to Rule 26 12(b)(6)). In determining whether the pleading states a claim on which relief may 27 be granted, its allegations of material fact must be taken as true and construed in the 28 light most favorable to plaintiff. See Love v. United States, 915 F.2d 1242, 1245 2 See 28 U.S.C. §§ 1915(e)(2), 1 (9th Cir. 1989). However, the “tenet that a court must accept as true all of the 2 allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft 3 v. Iqbal, 556 U.S. 662, 678 (2009). Nor is the Court “bound to accept as true a 4 legal conclusion couched as a factual allegation.” Wood v. Moss, 134 S. Ct. 2056, 5 2065 n.5 (2014) (citing Iqbal, 556 U.S. at 678). Rather, a court first “discounts 6 conclusory statements, which are not entitled to the presumption of truth, before 7 determining whether a claim is plausible.” Salameh v. Tarsadia Hotel, 726 F.3d 8 1124, 1129 (9th Cir. 2013), cert. denied, 134 S. Ct. 1322 (2014). Then, “dismissal 9 is appropriate where the plaintiff failed to allege enough facts to state a claim to 10 relief that is plausible on its face.” Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 11 2017) (internal quotation marks omitted, emphasis added). 12 Further, since plaintiff is a prisoner appearing pro se, the Court must construe 13 the allegations of the pleading liberally and must afford plaintiff the benefit of any 14 doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. 15 Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (because a prisoner was proceeding 16 pro se, “the district court was required to ‘afford [him] the benefit of any doubt’ in 17 ascertaining what claims he ‘raised in his complaint’”) (alteration in original). 18 However, the Supreme Court has held that “a plaintiff’s obligation to provide the 19 ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 20 and a formulaic recitation of the elements of a cause of action will not do. . . . 21 Factual allegations must be enough to raise a right to relief above the speculative 22 level . . . on the assumption that all the allegations in the complaint are true (even if 23 doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 24 (internal citations omitted, alteration in original); see also Iqbal, 556 U.S. at 678 25 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient 26 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’ . . . A claim has facial plausibility when the plaintiff pleads factual content 28 3 1 that allows the court to draw the reasonable inference that the defendant is liable for 2 the misconduct alleged.” (internal citation omitted)). 3 In addition, Fed. R. Civ. P. 8(a) states: A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. 4 5 6 7 8 9 (Emphasis added). Further, Rule 8(d)(1) provides: “Each allegation must be 10 simple, concise, and direct. No technical form is required.” Although the Court 11 must construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must 12 allege a minimum factual and legal basis for each claim that is sufficient to give 13 each defendant fair notice of what plaintiff’s claims are and the grounds upon 14 which they rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 15 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a 16 complaint must give defendants fair notice of the claims against them). 17 plaintiff fails to clearly and concisely set forth factual allegations sufficient to 18 provide defendants with notice of which defendant is being sued on which theory 19 and what relief is being sought against them, the pleading fails to comply with Rule 20 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. 21 Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). 22 “substantive plausibility” if a plaintiff alleges “simply, concisely, and directly [the] 23 events” that entitle him to damages. Johnson v. City of Shelby, 135 S. Ct. 346, 347 24 (2014). 25 dismissal of a pleading that applies even if the claims are not found to be wholly 26 without merit. See McHenry, 84 F.3d at 1179; Nevijel, 651 F.2d at 673. If a A claim has Failure to comply with Rule 8 constitutes an independent basis for 27 Following careful review of the Complaint, the Court finds that it fails to 28 comply with Rule 8 because it fails to state a short and plain statement of each 4 1 claim that is sufficient to give each defendant fair notice of what plaintiff’s claims 2 are and the grounds upon which they rest. In addition, its allegations appear 3 insufficient to state any claim upon which relief may be granted. Accordingly, the 4 Complaint is dismissed with leave to amend. See Rosati, 791 F.3d at 1039 (“A 5 district court should not dismiss a pro se complaint without leave to amend unless it 6 is absolutely clear that the deficiencies of the complaint could not be cured by 7 amendment.”) (internal quotation marks omitted). 8 If plaintiff desires to pursue this action, he is ORDERED to file a First 9 Amended Complaint no later than thirty (30) days after the date of this Order, 10 remedying the deficiencies discussed below. Further, plaintiff is admonished 11 that, if he fails to timely file a First Amended Complaint, or fails to remedy the 12 deficiencies of this pleading as discussed herein, the Court will recommend that this 13 action be dismissed without leave to amend and with prejudice.1 14 15 A. Official capacity claims 16 The Eleventh Amendment bars a plaintiff’s federal civil rights claims for 17 monetary damages against any state official in his or her official capacity. The 18 Eleventh Amendment bars federal jurisdiction over suits by individuals against a 19 State and its instrumentalities, unless either the State consents to waive its 20 21 22 23 24 25 26 27 28 1 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, although this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not required to omit any claim or defendant in order to pursue this action. However, if you decide to pursue a claim in a First Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges. 5 1 sovereign immunity or Congress abrogates it. Pennhurst State School & Hosp. v. 2 Halderman, 465 U.S. 89, 99-100 (1984). In addition, “the eleventh amendment 3 bars actions against state officers sued in their official capacities for past alleged 4 misconduct involving a complainant’s federally protected rights, where the nature 5 of the relief sought is retroactive, i.e., money damages.” Bair v. Krug, 853 F.2d 6 672, 675 (9th Cir. 1988). To overcome this Eleventh Amendment bar, the State’s 7 consent or Congress’ intent must be “unequivocally expressed.” Pennhurst, 465 8 U.S. at 99. While California has consented to be sued in its own courts pursuant to 9 the California Tort Claims Act, such consent does not constitute consent to suit in 10 federal court. See BV Engineering v. Univ. of Calif., 858 F.2d 1394, 1396 (9th Cir. 11 1988). Finally, Congress has not repealed state sovereign immunity against suits 12 brought under 42 U.S.C. § 1983. 13 Here, the Complaint names all defendants in their official capacities. (ECF 14 No. 1 at 3.) However, all defendants are alleged to be employees of the California 15 Department of Corrections and Rehabilitation (“CDCR”), which, as a state agency, 16 is immune from civil rights claims raised pursuant to § 1983. See Pennhurst, 465 17 U.S. at 100 (“This jurisdictional bar applies regardless of the nature of the relief 18 sought.”); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (the Eleventh 19 Amendment bars claim for injunctive relief against Alabama and its Board of 20 Corrections). 21 plaintiff may not seek monetary damages against any defendant in his or her official 22 capacity. Therefore, because all defendants are employees of the CDCR, 23 24 B. Rule 8 25 Plaintiff’s Complaint violates Rule 8 in that his “Claim No. 1” purports to 26 raise claims under both the First Amendment for retaliation and under the Eighth 27 Amendment for deliberate indifference. (ECF No. 1 at 4, 11-12.) Additionally, this 28 one “claim” incorporates multiple factual allegations concerning, “threatening” and 6 1 “taunting” conduct, searches, handcuffs applied too tightly, failure to provide 2 medical attention, detention in a small cell for three and a half hours, forcing 3 plaintiff to “hold his blatter [sic] for over an hour” (id. at 4-12), as well as the 4 ripping of the sign from plaintiff’s back after plaintiff refused an order to remove 5 the sign (id. at 4-5). Plaintiff appears to allege that defendants Nettleton and Biallas 6 placed handcuffs on too tightly, refused to loosen the handcuffs while plaintiff was 7 held in the small cell, and taunted plaintiff in retaliation for plaintiff’s wearing of 8 the sign (id. at 6-7), but he also appears to be raising one or more claims alleging 9 that these actions constituted “deliberate indifference in violation of the Eighth 10 Amendment” (id. at 12). 11 In this same “Claim No. 1,” plaintiff additionally alleges that unnamed 12 “escorting officers” again placed the handcuffs on plaintiff too tightly when they 13 put him back in the small cage after he had been interviewed, but it is unclear if 14 plaintiff is purporting to allege that these unnamed officers were acting in a 15 retaliatory manner. (Id. at 8.) “John Doe” defendants also refused to allow plaintiff 16 to use a restroom “for over an hour,” but plaintiff again does not specify if this 17 conduct was retaliatory, or if he is purporting to allege that this conduct violated the 18 Eighth Amendment. (Id. at 8-9.) Further, in this same claim, plaintiff also alleges 19 that “John Doe” defendants “failed to provide plaintiff any medical assistance” at 20 an unspecified time (id. at 8), but it again is not clear if this failure is alleged to be 21 retaliatory, or whether plaintiff ever received the necessary medical care. 22 Because plaintiff appears to raise numerous claims under multiple grounds 23 against different defendants within his one “claim,” plaintiff’s Complaint fails to 24 meet the minimal requirement of Rule 8 that a pleading allow each defendant to 25 discern what he or she is being sued for. See McHenry, 84 F.3d at 1177; see also 26 Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to 27 relief above the speculative level”). The Court remains mindful that, because 28 plaintiff is appearing pro se, the Court must construe the allegations of the 7 1 Complaint liberally and must afford plaintiff the benefit of any doubt. That said, 2 the Supreme Court has made clear that the Court has “no obligation to act as 3 counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). 4 In addition, the Supreme Court has held that, while a plaintiff need not plead the 5 legal basis for a claim, the plaintiff must allege “simply, concisely, and directly 6 events” that are sufficient to inform the defendants of the “factual basis” of each 7 claim. Johnson, 135 S. Ct. at 347. 8 Accordingly, the Court finds that plaintiff’s Complaint violates Rule 8 9 because it fails to set forth a simple, concise, and direct statement of the factual 10 basis of each of plaintiff’s claims against each defendant. 11 12 C. Retaliation claims 13 Plaintiff’s Complaint raises several claims of retaliation, all apparently 14 arising from plaintiff’s conduct of wearing a sign with a political message taped to 15 the back of his shirt while “working on the dock of the main kitchen.” Plaintiff 16 alleges that he refused Officer Nettleton’s order to remove the sign, and that 17 plaintiff told Officer Nettleton that “it’s my right to wear this.” (See ECF No. 1 at 18 4-5, 9.) 19 because he had worn a sign taped on his back,” and that he was “exercising his First 20 Amendment right to freedom of speech.” (Id. at 7, 11.) Plaintiff alleges that various actions were taken by defendants “only 21 An action taken in retaliation for the exercise of a First Amendment right is 22 actionable under § 1983. See Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997); 23 Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). As the Ninth Circuit set forth 24 in Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (alterations and 25 emphasis in original), a prisoner’s retaliation claim has five elements: 26 27 28 First, the plaintiff must allege that the retaliated-against conduct is protected. The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Second, the plaintiff must claim the defendant took adverse action against the 8 1 18 plaintiff. Id. at 567. The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he mere threat of harm can be an adverse action …” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). [¶] Third, the plaintiff must allege a causal connection between the adverse action and the protected conduct. Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal. See Pratt, 65 F.3d at 808 (“timing can properly be considered as circumstantial evidence of retaliatory intent”); Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987). [¶] Fourth, the plaintiff must allege that the “official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage. Id. at 569. [¶] Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution …” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A plaintiff successfully pleads this element by alleging, in addition to a retaliatory motive, that the defendant’s actions were arbitrary and capricious, id., or that they were “unnecessary to the maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). 19 Here, as set forth above, plaintiff’s Complaint fails to clearly allege the 20 factual basis of each retaliation claim that he is raising against each defendant. 21 Moreover, the Complaint does not clearly allege a causal connection between 22 plaintiff’s arguably protected conduct of wearing a placard and the numerous 23 adverse actions various prison officials took. 24 allegations are insufficient to raise a reasonable inference that the alleged adverse 25 actions “did not advance legitimate goals of the correctional institution.” See, e.g., 26 Mangiaracina v. Penzone, 849 F.3d 1191, 1197 (9th Cir. 2017) (courts “defer to the 27 judgment of corrections authorities, particularly with regard to matters of security, 28 because we recognize that ‘[r]unning a prison [or jail] is an inordinately difficult 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 9 In addition, plaintiff’s factual 1 undertaking’ with which prison or jail authorities have particular expertise” (citing 2 Turner v. Safley, 482 U.S. 78, 84-85 (1987), alterations in original). 3 A “prison inmate retains those First Amendment rights that are not 4 inconsistent with his status as a prisoner or with the legitimate penological 5 objectives of the corrections system.” Jones v. Williams, 791 F.3d 1023, 1035 (9th 6 Cir. 2015) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). The determination 7 of whether a speaker’s speech is “protected” by the First Amendment, however, 8 “depends on where he is” at the time that he engages in the speech or expressive 9 conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). It is clear 10 that a prisoner retains First Amendment rights to file an administrative grievance or 11 to access the courts to pursue specific types of legal cases. See Lewis v. Casey, 518 12 U.S. 343, 354-55 (1996) (access to the courts); Brodheim, 584 F.3d at 1269 (prison 13 grievance). 14 prisoner’s speech or other First Amendment activities. The Supreme Court has 15 held that “a prison regulation [that] impinges on inmates’ constitutional rights . . . is 16 valid if it is reasonably related to legitimate penological interests.” Turner, 482 17 U.S. at 89, 91-92 (finding no violation of prisoners’ First Amendment rights where, 18 although they were precluded from communicating with fellow prisoners, the 19 ‘regulation [did] not deprive prisoners of all means of expression”); see also Jones 20 v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 132 (1977) (prison officials 21 may “curtail” a prisoner’s First Amendment associational rights if they determine 22 that particular conduct poses a “likelihood of disruption to prison order or stability, 23 or otherwise interfere[s] with [] legitimate penological objectives”). 24 assessing the constitutionality of prison regulations that restrict inmates’ 25 constitutional rights, courts apply the four-part test set forth in Turner: 26 27 28 However, prison officials may lawfully impose limitations on a We ask (1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right 10 When 1 4 that remain open to prison inmates; (3) what impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether there is an absence of ready alternatives. 5 Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (internal quotation marks 6 omitted). 2 3 7 Here, it is not clear that the First Amendment protects a prisoner’s action in 8 attaching a placard with a political message to the back of his shirt while working 9 on a prison job, but it is clear that plaintiff’s refusal to comply with Officer 10 Nettleton’s order to remove the placard was not protected conduct. Although a 11 prisoner has a First Amendment right to file a written prison grievance, a prisoner’s 12 verbal challenge to a prison official’s direct order is not protected First Amendment 13 activity. See, e.g., Parran v. Wetzel, 2016 WL 1162328, *6, 2016 U.S. Dist. LEXIS 14 37340, *16 (M.D. Pa., Mar. 23, 2016) (“an inmate’s First Amendment rights do not 15 include the right to debate staff orders prior to obeying them, disregard prison rules, 16 or engage in activities that may incite a disturbance”); Rangel v. LaTraille, 2014 17 WL 4163599, at *8, 2014 U.S. Dist. LEXIS 116262, at *21 (E.D. Cal., Aug. 20, 18 2014) (collecting cases and finding that inmate’s “refusal to comply with orders is 19 not protected conduct under the First Amendment”). 20 The Court finds that, as presently alleged, the factual allegations in the 21 Complaint are insufficient to raise a reasonable inference that plaintiff’s conduct of 22 wearing a placard attached to his clothing while working at a prison job was “the 23 substantial or motivating factor behind” each defendant’s adverse actions rather 24 than plaintiff’s refusal to comply with a direct order of a prison official. See 25 Brodheim, 584 F.3d at 1271 (internal quotation marks omitted). A Complaint that 26 pleads factual allegations “merely consistent with a defendant’s liability . . . stops 27 short of the line between possibility and plausibility,” and fails to state a plausible 28 claim. Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Accordingly, 11 1 plaintiff’s factual allegations are insufficient to “nudge” his retaliation claims 2 “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. 3 4 D. Eighth Amendment claims 5 Plaintiff’s Complaint appears to allege multiple claims for “deliberate 6 indifference” within his Claim 1. (ECF No. 1 at 4, 12.) Plaintiff alleges that 7 Officers Nettleton and Biallas “converged upon plaintiff with pepper spray and 8 batons” and subjected plaintiff to a second “clothed body search.” (Id. at 5.) 9 Plaintiff also alleges that Officer Nettleton applied handcuffs that were “extremely 10 tight,” and Officers Nettleton and Biallas repeatedly refused to loosen the handcuffs 11 after plaintiff complained that they were “too tight and causing him pain.” (Id. at 5- 12 7.) Plaintiff was placed in a “3’ x 3’ cage” where “he was left to stand in much 13 pain for three and a half hours.” 14 periodically “would taunt plaintiff” through the window about the sign that he had 15 been wearing on his back. (Id. at 6.) The handcuffs were removed after three and a 16 half hours when plaintiff was taken for an interview. Plaintiff showed “John Does” 17 the “cuts and abrasions on his wrists and swollen hands caused by the too tight 18 handcuffs,” but plaintiff was not provided with any medical assistance. (Id. at 7-8.) 19 Plaintiff also alleges that he was “forced” by “John Does” “to hold his blatter [sic] 20 for over an hour before he was allowed to use the restroom.” (Id. at 8-9, 12.) (Id. at 6.) Officers Nettleton and Biallas 21 22 1. Overly tight handcuffs 23 To the extent that plaintiff is purporting to raise a claim pursuant to the 24 Eighth Amendment for the use of overly tight handcuffs, the Ninth Circuit has 25 recognized that, in the context of an arrest, the use of excessively tight handcuffs 26 may constitute a violation of the Fourth Amendment. See, e.g., Wall v. County of 27 Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (“It is well-established that overly 28 tight handcuffing can constitute excessive force.”); LaLonde v. County of Riverside, 12 1 204 F.3d 947, 960 (9th Cir. 2000) (“A series of Ninth Circuit cases has held that 2 tight handcuffing can constitute excessive force.”); Palmer v. Sanderson, 9 F.3d 3 1433, 1436 (9th Cir. 1993) (holding that the “abusive application of handcuffs” 4 causing pain and bruising was unconstitutional). In the prison context, however, a 5 claim of the use of excessive force by a prison official against a convicted prisoner 6 is evaluated under the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 7 6-7 (1992). Under the Eighth Amendment, not “every malevolent touch by a prison 8 guard” violates a prisoner’s constitutional rights. Hudson, 503 U.S. at 9; see also 9 Watison, 668 F.3d at 1113-14. The use of force against prisoners “does not amount 10 to a constitutional violation . . . if it is applied in a good faith effort to restore 11 discipline and order and not ‘maliciously and sadistically for the very purpose of 12 causing harm.’” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting 13 Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). 14 The Supreme Court has held that the “Eighth Amendment’s prohibition of 15 ‘cruel and unusual’ punishment necessarily excludes from constitutional 16 recognition de minimis uses of physical force, provided that the use of force is not 17 of a sort ‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 9-10. 18 Here, it is not clear from plaintiff’s Complaint if he is purporting to allege that any 19 defendant applied handcuffs too tightly and refused to loosen them “maliciously 20 and sadistically for the very purpose of causing harm” and that such force is of the 21 sort “repugnant to the conscience of mankind.” However, the Court notes that the 22 type of force that falls within the bounds of the Eighth Amendment when used by 23 correctional officers in a prison context against an incarcerated prisoner may “be 24 unlawful outside of prison walls.” See United States v. Waldman, 835 F.3d 751, 25 754 (7th Cir. 2016). 26 Amendment claim turns on “whether force was applied in a good faith effort to 27 maintain or restore discipline or maliciously and sadistically for the very purpose of 28 causing harm.” Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013) Accordingly, the constitutional analysis for an Eighth 13 1 If plaintiff wishes to state any claim pursuant to the Eighth Amendment 2 against any defendant arising from the use of overly tight handcuffs, then he should 3 set forth a separate claim stating a “short and plain statement” of each such claim 4 against each defendant. See Fed. R. Civ. P. 8(a)(2). 5 6 2. Medical care 7 To the extent that plaintiff wishes to raise a claim for constitutionally 8 inadequate medical care with his allegation that he received “no medical assistance” 9 for his wrists and hands after the handcuffs were removed, plaintiff also should set 10 forth a short and plain statement of the factual grounds for any such claim and 11 identify the specific defendant(s) he is purporting to raise such claim against. (See 12 ECF No. 1 at 8, 12.) 13 In order to establish a claim under the Eighth Amendment for inadequate 14 medical care, a prisoner must show that a specific defendant was deliberately 15 indifferent to his serious medical needs. See Helling v. McKinney, 509 U.S. 25, 32 16 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). 17 objective standard – that the deprivation was serious enough to constitute cruel and 18 unusual punishment – and a subjective standard – deliberate indifference.” Colwell 19 v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal quotation marks 20 omitted). “This includes both an 21 First, to meet the objective element of a deliberate indifference claim, “a 22 prisoner must demonstrate the existence of a serious medical need.” Colwell, 763 23 F.3d at 1066. 24 significant injury or the ‘unnecessary and wanton infliction of pain.’” Peralta v. 25 Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 946 26 (2015) (internal quotation marks omitted). Here, plaintiff’s Complaint appears to 27 allege that he suffered pain, “cuts and abrasions” on his wrists, and “swollen hands” 28 from the handcuffs. (ECF No. 1 at 8, 12.) Plaintiff does not allege that any of these “A medical need is serious if failure to treat it will result in 14 1 symptoms persisted. Accordingly, it does not appear to the Court that, objectively, 2 plaintiff’s injuries rise to the level of a “significant injury” or the “wanton infliction 3 of pain.” See Peralta, 744 F.3d at 1081. 4 Second, to meet the subjective element, a prisoner must “demonstrate that the 5 prison official acted with deliberate indifference.” Toguchi v. Chung, 391 F.3d 6 1051, 1057 (9th Cir. 2004). 7 intentional denial, delay or interference with a plaintiff’s medical care. See Estelle, 8 429 U.S. at 104-05. A specific prison official, however, “must not only ‘be aware 9 of facts from which the inference could be drawn that a substantial risk of serious 10 harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 F.3d at 11 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus, an inadvertent 12 failure to provide adequate medical care, negligence, a mere delay in medical care 13 (without more), or a difference of opinion over proper medical treatment, all are 14 insufficient to constitute an Eighth Amendment violation. See Estelle, 429 U.S. at 15 105-07; Toguchi, 391 F.3d at 1059-60; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 16 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 17 1985). Moreover, the Eighth Amendment does not require optimal medical care or 18 even medical care that comports with the community standard of medical care. 19 “[A] complaint that a physician has been negligent in diagnosing or treating a 20 medical condition does not state a valid claim of medical mistreatment under the 21 Eighth Amendment. 22 violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Deliberate indifference may be manifest by the Medical malpractice does not become a constitutional 23 Here, plaintiff’s general allegation that he was not provided with “any 24 medical assistance” for an unspecified time period (ECF No. 1 at 8) fails to allege 25 that any specific defendant was subjectively aware of any serious medical need and 26 acted with deliberate indifference by intentionally denying, delaying, or interfering 27 with plaintiff’s medical care. Further, to the extent that plaintiff is alleging that he 28 was not immediately provided with medical care, a brief delay in providing medical 15 1 care, without more, is insufficient to constitute an Eighth Amendment violation. 2 See, e.g., Shapley, 766 F.2d at 407. 3 4 3. Verbal taunting and threatening actions 5 To the extent that plaintiff is purporting to raise a claim pursuant to the 6 Eighth Amendment arising from his allegations that Officers Nettleton and Biallas 7 “would taunt plaintiff through the Plaza Central Control window” while plaintiff 8 was held in the “3’ x 3’ cage” (ECF No. at 6), or that these defendants threatened 9 him with pepper spray and batons (id. at 5, 12) after plaintiff refused Officer 10 Nettleston’s order to remove the sign from his back, threats or verbal harassment do 11 not give rise to a federal civil rights claim. See Watison, 668 F.3d at 1113 (“the 12 exchange of verbal insults between inmates and guards is a constant, daily ritual 13 observed in this nation’s prisons of which we do not approve, but which do not 14 violate the Eighth Amendment” (internal quotation marks omitted)); Keenan v. 15 Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 16 1998) (verbal harassment is not cognizable as a constitutional deprivation under 17 §1983); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (verbal 18 harassment or abuse is not constitutional deprivation under § 1983); Gaut v. Sunn, 19 810 F.2d 923, 925 (9th Cir. 1987) (prison guards’ threat of bodily harm failed to 20 state a claim under §1983). 21 22 4. Conditions of confinement 23 To the extent that plaintiff may be purporting to raise a claim pursuant to the 24 Eighth Amendment arising from the conditions of his confinement while he was 25 held in the “3’ x 3’ cage”, the Eighth Amendment does not mandate that prisons be 26 comfortable (see Rhodes v. Chapman, 452 U.S. 337, 349 (1981)), or that they 27 provide every amenity that a prisoner might find desirable (see Hoptowit v. Ray, 28 682 F.2d 1237, 1246 (9th Cir. 1982)), but it will not permit inhumane prison 16 1 conditions. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Prison officials 2 have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 3 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 4 (9th Cir. 2000). “The circumstances, nature, and duration of a deprivation of these 5 necessities must be considered in determining whether a constitutional violation has 6 occurred. ‘The more basic the need, the shorter the time it can be withheld.’” Id. 7 (citing Hoptowit, 682 F.2d at 1259); see also Foster v. Runnels, 554 F.3d 807, 812 8 (9th Cir. 2009) (finding the “repeated and unjustified failure” to provide “adequate 9 sustenance on a daily basis” can constitute cruel and unusual punishment). 10 Here, plaintiff appears to allege that unspecified prison officials refused his 11 request to use the restroom for “over an hour” (ECF No. 1 at 8-9), and that he was 12 held in a “3’x3’ cage for three and a half (31/2) hours” (id. at 8). These brief 13 deprivations appear insufficient to allege that plaintiff was confined under 14 conditions that were objectively serious enough to be considered cruel and unusual. 15 See Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 16 Accordingly, the Court finds that plaintiff’s factual allegations in the 17 Complaint, even accepted as true and construed in the light most favorable to 18 plaintiff, appear insufficient to nudge any claim pursuant to the Eighth Amendment 19 “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. 20 21 E. Supervisory defendant 22 Plaintiff names Acting Associate Warden Core as a defendant, but the 23 Complaint does not set forth any factual allegations, or appear to assert any claims, 24 against this defendant. Rather, plaintiff appears to be seeking to hold this defendant 25 liable based solely on his or her supervisory role. However, the Supreme Court has 26 emphasized that “Government officials may not be held liable for the 27 unconstitutional conduct of their subordinates under a theory of respondeat 28 superior.” Iqbal, 556 U.S. at 676. Accordingly, plaintiff must allege that each 17 1 defendant “through the official’s own individual actions, has violated the 2 Constitution.” 3 notwithstanding, is only liable for his or her own misconduct”). Further, to the 4 extent that plaintiff is purporting to hold any supervisory defendant liable on a 5 theory that a particular defendant failed to take action in response to a pattern of 6 constitutional violations, plaintiff’s Complaint fails to set forth any factual 7 allegations pertaining to any other similar incidents. Allegations of one incident do 8 not raise a reasonable inference either that inadequate training caused the alleged 9 constitutional violation of which plaintiff complains, or that any supervisory 10 defendant was deliberately indifferent to a lack of training. See Marsh v. County of 11 San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (allegations of an isolated instance 12 of a constitutional violation are insufficient to support a “failure to train” theory). Id. at 676-77 (“each Government official, his or her title 13 Accordingly, the Court finds that the Complaint fails to set forth any factual 14 allegations plausibly suggesting that the execution of any specific policy, 15 ordinance, regulation, custom or the like was the “actionable cause” of any alleged 16 constitutional violation. See Tsao, 698 F.3d at 1146; Lee v. City of Los Angeles, 17 250 F.3d 668, 681-82 (9th Cir. 2001) (plaintiff must allege that the local entity’s 18 custom or policy was the “moving force behind the constitutional violation[s]”). 19 20 F. Disciplinary hearing 21 Plaintiff’s “Claim No. 3” appears to allege that the loss of credit he was 22 assessed following a disciplinary hearing was retaliatory and violated the First 23 Amendment. Plaintiff alleges that after he was found guilty on a RVR, he was 24 assessed a “credit loss of 30 days.” Later, the matter was “re-adjudicated,” and he 25 was assed a “24 day loss of credit.” (ECF No. 1 at 10-11, 13-14.) 26 First, to the extent that plaintiff may be seeking to have the guilty finding on 27 the RVR set aside, a petition for habeas corpus is a prisoner’s sole judicial remedy 28 when attacking “the validity of the fact or length of … confinement.” Preiser v. 18 1 Rodriguez, 411 U.S. 475, 489-90 (1973); Young v. Kenny, 907 F.2d 874, 875 (9th 2 Cir. 1990). Further, a prisoner’s challenge to a disciplinary action that necessarily 3 implicates the length of his or her confinement must be brought in a petition for 4 habeas corpus. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (barring § 1983 5 challenge to prison disciplinary hearing because success on the claim would result 6 in automatic reversal of a disciplinary sanction); Wolff v. McDonnell, 418 U.S. 539, 7 554-55 (1974) (holding that prisoners may not use § 1983 to obtain restoration of 8 good-time credits). Thus, a plaintiff may not use a civil rights action to seek 9 expungement of his disciplinary conviction(s), or to seek the restoration of any lost 10 credits if those credits necessarily implicate the length of his confinement. Such 11 relief only is available in a habeas corpus action. 12 Second, to the extent that plaintiff may be attempting to use a civil rights 13 action to seek monetary damages for an allegedly unlawful disciplinary action 14 where success would necessarily implicate the fact or duration of his confinement, 15 his claims are not cognizable under § 1983 unless and until plaintiff can show that 16 “the conviction or sentence has been reversed on direct appeal, expunged by 17 executive order, declared invalid by a state tribunal authorized to make such 18 determination, or called into question by a federal court’s issuance of a writ of 19 habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Under Heck, if a 20 judgment in favor of a plaintiff on a civil rights action necessarily will imply the 21 invalidity of his or her conviction or sentence, the complaint must be dismissed 22 unless the plaintiff can demonstrate that the conviction or sentence already has been 23 invalidated. Id.. Thus: 24 27 [A] state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration. 28 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original); see also 25 26 19 1 Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Where the prisoner’s claim would 2 not ‘necessarily spell speedier release,’ however, suit may be brought under 3 § 1983.”); Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc) 4 (“challenges to disciplinary proceedings are barred by Heck only if the § 1983 5 action would be ‘seeking a judgment at odds with [the prisoner’s] conviction or 6 with the State’s calculation of time to be served.’”) (emphasis added), cert. denied, 7 137 S. Ct. 645 (2017); see also Wilkerson v. Wheeler, 772 F.3d 834, 840 (9th Cir. 8 2014) (noting that, subsequent to Balisok, the “Supreme Court has clarified that 9 Heck does not bar a § 1983 claim that ‘threatens no consequence for [an inmate’s] 10 conviction or the duration of [his or her sentence].’” (alterations in original)). 11 Accordingly, to the extent that success of any of plaintiff’s claims herein 12 would demonstrate the invalidity of a disciplinary action that resulted in the loss of 13 credit that necessarily implicates the length of plaintiff’s sentence, plaintiff must 14 either demonstrate that the disciplinary conviction already has been invalidated or 15 raise such claim in a habeas petition. ************ 16 17 If plaintiff still desires to pursue this action, he is ORDERED to file a First 18 Amended Complaint no later than thirty (30) days after the date of this Order, 19 remedying the pleading deficiencies discussed above. 20 Complaint should bear the docket number assigned in this case; be labeled “First 21 Amended Complaint”; and be complete in and of itself without reference to the 22 original Complaint, or any other pleading, attachment, or document. The First Amended 23 The clerk is directed to send plaintiff a blank Central District civil rights 24 complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished 25 that he must sign and date the civil rights complaint form, and he must use the 26 space provided in the form to set forth all of the claims that he wishes to assert in a 27 First Amended Complaint. 28 20 1 In addition, if plaintiff no longer wishes to pursue this action, he may request 2 a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 3 41(a). The clerk also is directed to attach a Notice of Dismissal form for plaintiff’s 4 convenience. 5 Plaintiff is further admonished that, if he fails to timely file a First Amended 6 Complaint, or fails to remedy the deficiencies of this pleading as discussed herein, 7 the Court will recommend that the action be dismissed with prejudice on the 8 grounds set forth above and for failure to diligently prosecute. 9 IT IS SO ORDERED. 10 11 12 13 14 DATED: August 15, 2017 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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