Johnny Lee Briggs v. T. Enriquez

Filing 15

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered dismissing the action without prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHNNY LEE BRIGGS,

) NO. CV 17-4615-FMO(E)
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Plaintiff,
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v.
) REPORT AND RECOMMENDATION OF
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T. ENRIQUEZ,
) UNITED STATES MAGISTRATE JUDGE
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Defendant.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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Fernando M. Olguin, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Plaintiff, a state prisoner, filed this civil rights action

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pursuant to 42 U.S.C. section 1983 on June 19, 2017, in the United

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States District Court for the Eastern District of California.

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Plaintiff alleged claims assertedly arising out of events at the

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California Men’s Colony (“CMC”) in San Luis Obispo, California.

On

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June 20, 2017, the Eastern District transferred the action to this

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Court.

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On August 15, 2017, the Court issued an “Order Dismissing

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Complaint With Leave to Amend.”

On September 13, 2017, Plaintiff

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filed a First Amended Complaint.

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issued an “Order Dismissing First Amended Complaint With Leave to

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Amend.”

On September 22, 2017, the Court

Because it appeared to the Court that Plaintiff’s claims

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could implicate the validity of a criminal conviction and/or a

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disciplinary conviction resulting in a lack of credit, both the

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August 15, 2017 Order and the September 22, 2017 order required

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Plaintiff to allege, in any amended pleading, facts showing that the

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action is not barred by Heck v. Humphrey, 512 U.S. 477 (1994)

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(“Heck”).

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On October 20, 2017, Plaintiff filed a Second Amended Complaint.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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I.

The Original Complaint

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In the brief form Complaint, Plaintiff alleged that Defendant

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Correctional Officer T. Enriquez subjected Plaintiff to excessive

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force while Plaintiff was incarcerated at CMC.

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contained no factual allegations supporting this conclusory claim of

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excessive force.

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different stories of what happened” (Complaint, p. 3).

The original Complaint

Plaintiff alleged that Defendant “made up two

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Plaintiff

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sought the following relief: “Exception from Battery on a peace

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officer and Battery By Prisoner through injunctive relief” (id., p.

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6).

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II.

The First Amended Complaint

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In the First Amended Complaint, Plaintiff sued Defendant Enriquez

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in Defendant’s individual and official capacities for excessive force

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allegedly inflicted on October 22, 2016 (First Amended Complaint, p.

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3).

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he was taken to a hospital by ambulance after Defendant assertedly

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subjected Plaintiff to excessive force (id., p. 5).

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confusingly alleged:

The pleading was not a model of clarity.

Plaintiff alleged that

Plaintiff

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Battery on a peace officer is a lesser included offense of

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Battery By Prisoner on a non prisoner.

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subjected to serve time in prison on Both offenses for the

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same alleged conduct.

I cannot be

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(id.).

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Plaintiff purportedly asserted claims for violation of the Fifth,

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Eighth and Fourteenth Amendments and sought damages and unspecified

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injunctive relief.

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Plaintiff attached to the First Amended Complaint several

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documents, including a San Luis Obispo County Superior Court “Case

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Summary” in People v. Briggs, case number 17F-03739.
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This document

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appeared to indicate that on April 24, 2017, the State charged

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Plaintiff with two counts of battery by a prisoner on a non-confined

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person in violation of California Penal Code section 4501.5 and one

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count of resisting or obstructing an officer in violation of

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California Penal Code section 69 (First Amended Complaint, attachment,

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third page).

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Petitioner pled no contest to one count of battery by a prisoner on a

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non-prisoner and received a three year prison sentence (id., fourth

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and fifth pages).

The document also indicated that on May 23, 2017,

A prison document titled “Legal Status Summary”

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attached to the Complaint indicated that, on November 29, 2016,

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Plaintiff reportedly suffered a prison disciplinary conviction with an

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“effective date” of October 22, 2016, as a result of which Plaintiff

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apparently lost credits (id., p. 9).

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III.

Second Amended Complaint

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In the Second Amended Complaint, Plaintiff sues Defendant

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Enriquez in Defendant’s individual capacity only.

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that Enriquez acted under color of law within the meaning of section

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1983 by assertedly engaging in “misconduct, nuisance, neglegance

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unproffessional [sic]” (Second Amended Complaint, p. 3).

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purportedly factual allegations, in their entirety, state:

Plaintiff alleges

The

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T. Enriquez misconduct was excessive and unproffesional

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[sic] on 10-22-16 at CMC State Prison I Johnny Lee Briggs

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suffered injurys [sic] due to officers T. Enriquez use of

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force officers handling of the situation was in violation of

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Departmental policy engaging in combat with Inmate[.]
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Heck

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test does not bar my complaint under cruel and unusual

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punishment[.]

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injury to parties is [sic] separate to criminal and

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institutional charges regarding personal injury for cruel

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and unusual punishment[.]

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my right to be free from harm injury or illegal restraint by

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Assault libel & slander.

[O[fficer misconduct complaints involving

T. Enriquez misconduct violated

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(Second Amended Complaint, p. 5).

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Plaintiff alleges Defendant assertedly:

(1) violated “civil code

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of procedure (8) . . . [and] (25)”: (2) subjected Plaintiff to cruel

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and unusual punishment; (3) committed professional negligence; and

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(4) violated the Americans with Disabilities Act, 42 U.S.C. section

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12321 et seq (Second Amended Complaint, p. 5).

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compensatory and punitive damages, payment of medical expenses and

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injunctive relief “for civil harassment” (Second Amended Complaint, p.

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6).

Plaintiff seeks

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DISCUSSION

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As the Court previously advised Plaintiff in the August 15, 2017

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and September 22, 2017 Orders, under Rule 8(a) of the Federal Rules of

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Civil Procedure, a complaint must contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.”

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allegation must be simple, concise, and direct.”

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8(d)(1).

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precisely, issues are not joined, discovery is not controlled, the

“Each

Fed. R. Civ. P.

“Experience teaches that, unless cases are pled clearly and

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trial court’s docket becomes unmanageable, the litigants suffer, and

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society loses confidence in the court’s ability to administer

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justice.”

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2000) (citations and quotations omitted).

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advised of the requirements of Rule 8, the Second Amended Complaint

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again contains only confused and conclusory allegations.

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v. Iqbal, 556 U.S. 662, 678, 686 (2009); Ivey v. Board of Regents of

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Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.
Despite twice having been

See Ashcroft

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As the Court twice previously advised Plaintiff, the Eighth

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Amendment prohibits the use of “excessive physical force” against

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prisoners.

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McMillian, 503 U.S. 1, 6 (1992).

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Amendment violation turns on whether force was applied in a good faith

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effort to maintain or restore prison discipline, or maliciously and

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sadistically for the very purpose of causing harm.

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McMillian, 503 U.S. at 6.

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2017 Order, the Court ordered Plaintiff to assert, in any amended

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pleading, factual allegations supporting Plaintiff’s excessive force

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claim.

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conclusory allegations again are insufficient to allege a cognizable

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excessive force claim.

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(plaintiff must allege more than an “unadorned, the-defendant-

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unlawfully-harmed me accusation”; a pleading that “offers labels and

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conclusions or a formulaic recitation of the elements of a cause of

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action will not do”) (citations and quotations omitted); Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Threadbare recitals of

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the elements of a cause of action, supported by mere conclusory

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hudson v.
Whether there has been an Eighth

Hudson v.

In the August 15, 2017 and September 22,

Plaintiff has failed to obey these orders.

Plaintiff’s

See Ashcroft v. Iqbal, 556 U.S. at 678, 686

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statements, do not suffice.”); Cervantes v. Salazar, 2017 WL 1427011,

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at *1 (E.D. Cal. Apr. 21, 2017) (conclusory excessive force

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allegations insufficient).

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In both the August 15, 2017 and September 22, 2017 Orders, the

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Court observed that the original Complaint suggested Plaintiff’s claim

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might implicate the validity of a criminal conviction or a prison

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disciplinary conviction for battery on an officer.

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indicated, the First Amended Complaint and attachments thereto

As previously

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appeared to indicate that Plaintiff did suffer a criminal conviction

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and a disciplinary conviction arising out of the alleged excessive

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force incident.

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Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court

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held that, in order to pursue a claim for damages arising out of an

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allegedly unconstitutional conviction or imprisonment, or for other

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harm caused by actions whose unlawfulness would render a conviction or

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sentence invalid, a civil rights plaintiff must prove that the

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conviction or sentence has been “reversed on direct appeal, expunged

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by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court’s

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issuance of a writ of habeas corpus.”

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claim for damages bearing that relationship to a conviction or

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sentence that has not been so invalidated is not cognizable under §

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1983.”

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Supreme Court applied Heck to a due process challenge to prison

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disciplinary proceedings resulting in the loss of good time credits.

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The Court twice previously advised Plaintiff that, in

Id. at 487.

Heck, 512 U.S. at 486-87.

“A

In Edwards v. Balisok, 520 U.S. 641 (1997), the

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As the Court previously advised Plaintiff, in some circumstances

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Heck may not bar an excessive force claim despite a plaintiff’s

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conviction for resisting or battering an officer, as where the

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excessive force claim arises out of a factual scenario different from

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that supporting the conviction.

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669 F.3d 1038, 1042 (9th Cir. 2012) (Heck would not bar an excessive

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force claim that is “distinct temporally or spatially from the factual

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basis for the [plaintiff’s] conviction”) (dicta); Hooper v. County of

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San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011) (conviction for

See Beets v. County of Los Angeles,

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resisting arrest “does not bar a § 1983 claim for excessive force

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under Heck when the conviction and the § 1983 claim are based on

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different actions during ‘one continuous transaction’”); Smith v. City

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of Hemet, 394 F.3d 689, 696 (9th Cir.) (en banc), cert. denied, 545

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U.S. 1128 (2005) (“Under Heck, Smith would be allowed to bring a §

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1983 action . . . if the use of excessive force occurred subsequent to

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the conduct on which his conviction was based.”); Shelton v. Chorley,

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2011 WL 1253655, at *4 (E.D. Cal. Mar. 31, 2011), aff’d, 487 Fed.

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App’x 368 (9th Cir. 2012) (Heck did not bar prisoner’s excessive use

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of force claim against correctional officer despite plaintiff’s prison

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disciplinary conviction for battery on a peace officer because it was

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“possible that Plaintiff attempted to batter Defendant and that

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Defendant used excessive force in subduing Plaintiff”); compare Beets

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v. County of Los Angeles, 669 F.3d at 1044-45 (Heck barred excessive

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force claim where “there was no separation between [decedent’s]

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criminal actions and the alleged use of excessive force”); Lozano v.

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City of San Pablo, 2014 WL 4386151, at *5 (N.D. Cal. Sept. 4, 2014)

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(Heck applicable where plaintiff could “not divorce the conduct giving

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rise to his excessive force claim from the conduct giving rise to his
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conviction”); Velarde v. Duarte, 937 F. Supp. 2d 1204, 1216 (S.D. Cal.

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2013) (Heck applied where, among other things, plaintiff’s excessive

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force allegations were “based on the exact same acts that were

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considered in the prison disciplinary proceeding, and these facts

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[were] not in any way divisible from the facts alleged in the

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Complaint”).

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In the August 15, 2017 “Order, etc.,” the Court inter alia

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ordered that, in any First Amended Complaint, Plaintiff should plead

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facts attempting to show that Heck does not bar Plaintiff’s claim.

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The First Amended Complaint did not contain any such factual

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allegations.

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thereto that the excessive force incident upon which the First Amended

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Complaint was based is the same incident which assertedly gave rise to

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Plaintiff’s criminal and/or disciplinary convictions.

Indeed, it appeared from the pleading and attachments

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In the September 22, 2017 Order, the Court again required

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Plaintiff, in any Second Amended Complaint, to plead facts attempting

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to show that Heck did not bar Plaintiff’s claim.

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Complaint again contains no such factual allegations.

The Second Amended

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CONCLUSION

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Although the Court has afforded Plaintiff multiple opportunities

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to amend his pleading to state a cognizable federal claim for relief,

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Plaintiff has proven unable to do so.

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further amendment would be futile.

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Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (affirming

In the present circumstances,

See Zucco Partners, LLC v.

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dismissal without leave to amend where court advised plaintiff of

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pleading deficiencies but plaintiff failed to correct those

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deficiencies in amended pleading); Simon v. Value Behavioral Health,

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Inc., 208 F.3d 1073, 1084 (9th Cir. 2000), amended, 234 F.3d 428 (9th

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Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other

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grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert.

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denied, 552 U.S. 985 (2007) (affirming dismissal without leave to

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amend where plaintiff failed to correct deficiencies in complaint,

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where court had afforded plaintiff opportunities to do so, and had

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discussed with plaintiff the substantive problems with his claims);

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Plumeau v. School District #40, County of Yamhill, 130 F.3d 432, 439

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(9th Cir. 1997) (denial of leave to amend appropriate where further

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amendment would be futile).

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action should be dismissed without leave to amend but without

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prejudice.

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Cir. 1995) (court should dismiss a claim barred by Heck without

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prejudice “so that [the plaintiff] may reassert his claims if he ever

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succeeds in invalidating his conviction.”).1

The Second Amended Complaint and the

See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th

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RECOMMENDATION

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For the reasons discussed above, IT IS RECOMMENDED that the Court

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issue an order:

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(1) accepting and adopting this Report and

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This dismissal also would be without prejudice to the
reassertion of any state law claims attempted to be alleged in
the Second Amended Complaint. See 28 U.S.C. § 1367(c)(3).
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Recommendation; and (2) dismissing the Second Amended Complaint and

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the action without leave to amend but without prejudice.

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DATED: November 1, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

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No notice of appeal pursuant to the