Shepard v. Tilton et al

Filing 11

ORDER DISMISSING Certain Claims signed by Magistrate Judge Dennis L. Beck on 2/24/2011. (Sant Agata, S)

(PC) Shepard v. Tilton et al

Doc. 11

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LAMONT SHEPARD, 10 11 v. Plaintiff, CASE NO. 1:10-CV-00023-DLB PC ORDER DISMISSING CERTAIN CLAIMS (DOC. 1)

UNITED STATES DISTRICT COURT

12 J. TILTON, et al., 13 14 15 16 17 I. 18 Background Plaintiff Lamont Shepard ("Plaintiff") is a prisoner in the custody of the California Screening Order Defendants. /

19 Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 21 action by filing his complaint on January 6, 2010. Doc. 1. On October 12, 2010, the Court 22 screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that it stated cognizable 23 claims against Defendants L. A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz, J. Campos, 24 and Trevino for violation of the Eighth Amendment, but failed to state any other claims. Doc. 7. 25 Plaintiff was provided the opportunity to either file an amended complaint curing the deficiencies 26 identified, or to notify the Court of his willingness to proceed only on claims found to be 27 cognizable. On February 22, 2011, Plaintiff indicated his willingness to proceed only on the 28 cognizable claims. Doc. 10. The Court issues the following order. 1
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The Court is required to screen complaints brought by prisoners seeking relief against a

2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 4 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 5 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 6 § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 7 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 8 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 9 1915(e)(2)(B)(ii). 10 A complaint must contain "a short and plain statement of the claim showing that the

11 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual 15 matter, accepted as true, to `state a claim that is plausible on its face.'" Id. (quoting Twombly, 16 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 17 II. 18 Summary Of Complaint Plaintiff is incarcerated at Corcoran State Prison ("CSP"), where the events giving rise to

19 this action occurred. Plaintiff names as Defendants former director of CDCR James Tilton, 20 former warden Derral Adams, correctional sergeant L. A. Martinez, and correctional officers R. 21 Perez, P. Garcia, J. Soto, E. De la Cruz, J. Campos, R. Castro, L. Nelson, and T. Cano. Plaintiff 22 also names Defendant Trevino in the body of his complaint. 23 Plaintiff alleges the following. On August 4, 2009, Plaintiff was conversing with another

24 inmate through a fence that separated west yard from east yard. Defendant Perez informed 25 Plaintiff that he was not allowed to do so. Plaintiff asked whether this rule was for only black 26 inmates. Defendant Trevino then made a statement to Plaintiff and pepper-sprayed him with OC 27 pepper spray. Plaintiff dropped to the ground. A defendant then jumped onto Plaintiff's back. 28 Plaintiff was then escorted to the program office, rather than decontamination. Plaintiff noticed 2

1 that Defendants Martinez and Soto were escorting him. Once at the program office, Defendant 2 Martinez instructed Defendant De La Cruz to clear out the office, and the secure the door. 3 Officer Miranda was told to go outside and close the door, and not permit anyone to come in. 4 Defendants Soto, De La Cruz, Perez, Trevino, Garcia, and Campos entered before the door was 5 closed. Plaintiff was handcuffed behind his back at this point. Defendants then proceeded to 6 beat Plaintiff in the head, while Defendant Garcia was the lookout. Defendants used racial slurs 7 as they beat Plaintiff. Plaintiff was knocked unconscious twice during the assault. Upon 8 awakening a third time, Plaintiff overheard Captain Seifert and Lieutenant Gamboa yell at the 9 Defendants. 10 Captain Seifert informed Plaintiff that Investigative Services Unit had been contacted.

11 Plaintiff was taken to ACH (Acute Care Hospital) in CSP. The examining doctor found that 12 Plaintiff should be sent to an outside hospital for medical care. On the ride to the hospital, 13 Defendant Castro rode in the cab and informed Plaintiff that they should beat Plaintiff or kill 14 him. 15 Plaintiff filed several inmate grievances regarding this matter. Some were directed to the

16 warden, others to the secretary, and others to the Office of Internal Affairs. None were 17 processed. 18 Plaintiff alleges violation of the Eighth Amendment, the Due Process Clause of the

19 Fourteenth Amendment, and state law claims of assault and battery. Plaintiff requests as relief 20 the firing of the Defendant officers involved, a vacating of a false report regarding the incident on 21 Plaintiff, and compensatory and punitive damages. 22 III. 23 24 Analysis A. Eighth Amendment

"What is necessary to show sufficient harm for purposes of the Cruel and Unusual

25 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson 26 v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is 27 . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation 28 marks and citations omitted). The malicious and sadistic use of force to cause harm always 3

1 violates contemporary standards of decency, regardless of whether or not significant injury is 2 evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth 3 Amendment excessive force standard examines de minimis uses of force, not de minimis 4 injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause 5 of action." Hudson, 503 U.S. at 9. "The Eighth Amendment's prohibition of cruel and unusual 6 punishments necessarily excludes from constitutional recognition de minimis uses of physical 7 force, provided that the use of force is not of a sort `repugnant to the conscience of mankind." 8 Id. at 9-10 (internal quotations marks and citations omitted). 9 Here, Plaintiff has sufficiently alleged a cognizable Eighth Amendment claim against

10 Defendants L. A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz, J. Campos, and Trevino. 11 Plaintiff fails to state a cognizable Eighth Amendment claim against Defendant Castro.

12 Verbal harassment or abuse alone is not sufficient to state a constitutional deprivation under 42 13 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citation and internal 14 quotation omitted). Mere threats are insufficient to state a claim an Eighth Amendment claim. 15 Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam). 16 17 B. Due Process

Plaintiff alleges a due process violation for the beating he suffered. "[W]here a particular

18 amendment provides an explicit textual source of constitutional protection against a particular 19 sort of government behavior, that Amendment, not the more generalized notion of substantive 20 due process, must be guide for analyzing a plaintiff's claims." Patel v. Penman, 103 F.3d 868, 21 874 (9th Cir. 1996). Here, the Eighth Amendment, and not the more generalized notion of 22 substantive due process, is the explicit textual source of constitutional protection. Thus, there is 23 no substantive due process claim. 24 Plaintiff also has no federal due process right to a specific procedure regarding inmate

25 grievances. Ramirez v. Galaza, 334 F.33d 850, 860 (9th Cir. 2003) (no liberty interest in 26 processing of appeals because no entitlement to specific grievance procedure). Thus, Plaintiff 27 28 4

1 does not state a claim against Defendants Tilton, Adams, or Nelson.1 2 3 C. Supervisory Liability

If Plaintiff is alleging liability against Defendants Tilton and Adams on the basis of their

4 role as supervisory officials, Plaintiff fails to state a claim. The Supreme Court recently 5 emphasized that the term "supervisory liability," loosely and commonly used by both courts and 6 litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. "Government officials may not be held 7 liable for the unconstitutional conduct of their subordinates under a theory of respondeat 8 superior." Id. at 1948. Rather, each government official, regardless of his or her title, is only 9 liable for his or her own misconduct. 10 When the named defendant holds a supervisorial position, the causal link between the

11 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 12 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 13 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 14 some facts indicating that the defendant either: personally participated in the alleged deprivation 15 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 16 or "implemented a policy so deficient that the policy `itself is a repudiation of constitutional 17 rights' and is `the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 18 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 19 1989). Plaintiff alleges no facts that indicate Defendants Tilton or Adams knew of the violations 20 and failed to act to prevent them, personally participated in the alleged deprivation, or 21 promulgated or implemented a policy so deficient that the policy itself is a repudiation of 22 constitutional rights and the moving force of a constitutional violation. 23 24 D. State Law Claims

California's Tort Claims Act requires that a tort claim against a public entity or its

25 employees be presented to the California Victim Compensation and Government Claims Board, 26 27 28
Plaintiff also names T. Cano as a Defendant. However, Plaintiff fails to link Defendant Cano to any action that would indicate a violation of Plaintiff's federally protected rights. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
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1 formerly known as the State Board of Control, no more than six months after the cause of action 2 accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a written 3 claim, and action on or rejection of the claim are conditions precedent to suit. State v. Superior 4 Court of Kings County (Bodde), 32 Cal. 4th 1234, 1245 (2004); Mangold v. California Pub. 5 Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public 6 employee, a plaintiff must allege compliance with the Tort Claims Act. State v. Superior Court, 7 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 8 F.2d 621, 627 (9th Cir. 1988). As there is no such pleading in this complaint, Plaintiff's state 9 law claims are dismissed. 10 IV. 11 Conclusion And Order Plaintiff states a cognizable Eighth Amendment claim against Defendants L. A. Martinez,

12 R. Perez, P. Garcia, J. Soto, E. De la Cruz, J. Campos, and A. Trevino. Plaintiff was provided 13 the opportunity to either file an amended complaint or notify the Court of his willingness to 14 proceed only on the cognizable claims. Plaintiff indicated that he wished to proceed only on the 15 cognizable claims. 16 17 18 19 20 21 22 23 24 25 26 27 28 6 2. 3. Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. This action proceed against Defendants L. A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz, J. Campos, and A. Trevino for violation of the Eighth Amendment; All other claims are dismissed from this action for failure to state a claim; and Defendants Tilton, Adams, Cano, Nelson, and Castro are dismissed from this action. IT IS SO ORDERED. Dated: 3b142a

February 24, 2011

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE