Nestor Hernandez v. Olmos et al

Filing 14

ORDER DISMISSING Action signed by Chief Judge Ralph R. Beistline on 4/24/2013. CASE CLOSED. (Sant Agata, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NESTOR HERNANDEZ,
Case No. 1:11-cv-01701-RRB
Plaintiff,
vs.
DISMISSAL ORDER

OLMOS, Correctional Officer;
ACOSTA, correctional officer;
K. SAMPSON, Appeals
Coordinator; DAUX, Law
Librarian; and M. NIPPER,
Appeals Coordinator,
Defendants.

Nestor Hernandez, a state prisoner appearing pro se and in
forma pauperis, filed a civil rights action under 42 U.S.C. § 1983,
against correctional officers and officials of the California
Department of Corrections and Rehabilitation. Hernandez’s Complaint
arises out of events that occurred while Hernandez was incarcerated
at the California State Prison, Tehachapi. After the Complaint was
filed in this matter, Hernandez was transferred to the North Kern
State Prison.1
I.

SCREENING REQUIREMENTS
This

Court

is

required

to

screen

complaints

brought

by

prisoners seeking relief against a governmental entity or officer
1

Docket 12.

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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB

or employee of a governmental entity.2 This Court must dismiss a
complaint or portion thereof if the prisoner has raised claims that
are legally “frivolous or malicious,” that “fails to state a claim
on which relief may be granted,” or that “seeks monetary relief
against a defendant who is immune from such relief.”3 Likewise, a
prisoner

must

exhaust

all

administrative

remedies

as

may

be

available,4 irrespective of whether those administrative remedies
provide for monetary relief.5
In determining whether a complaint states a claim, the Court
looks

to

the

pleading

standard

under

Federal

Rule

of

Civil

Procedure 8(a). Under Rule 8(a), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”6 “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more

than

2

an

unadorned,

the-defendant-unlawfully-harmed-me

28 U.S.C. § 1915A(a).

3

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see
Lopez v. Smith, 203 F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en
banc).
4

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81,
93–95 (2006) (“proper exhaustion” under § 1997e(a) is mandatory and
requires proper adherence to administrative procedural rules).
5

See Booth v. Churner, 532 U.S. 731, 734 (2001).

6

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

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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB

accusation.”7

Failure to state a claim under § 1915A incorporates

the familiar standard applied in Federal Rule of Civil Procedure
12(b)(6), including the rule that complaints filed by pro se
prisoners are to be liberally construed, affording the prisoner the
benefit of any doubt, and dismissal should be granted only where it
appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.8
Section 1983 suits do not support vicarious liability, a
plaintiff

must

participated

in

demonstrate
the

that

deprivation

of

each
his

defendant
or

her

personally

rights.9

This

requires the presentation of factual allegations sufficient to
state a plausible claim for relief.10

“[A] complaint [that] pleads

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
8

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

9

Iqbal, 556 U.S. at 677; OSU Student Alliance v. Ray, 699
F.3d 1053, 1069 (9th Cir. 2012); Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002); see Monell v. Dep’t of Soc. Svcs., 436 U.S.
658, 691–95 (1978) (rejecting the concept of respondeat superior in
the context of § 1983, instead requiring individual liability for
the violation); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“Liability under [§] 1983 arises only upon a showing of personal
participation by the defendant. A supervisor is only liable for the
constitutional violations of . . . subordinates if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.” (Citations
omitted)).
10

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting and applying
Iqbal and Twombly).
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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB

facts that are ‘merely consistent with’ a defendant’s liability
. . . ‘stops short of the line between possibility and plausibility
of entitlement to relief.’”11 Further, although a court must accept
as true all factual allegations contained in a complaint, a court
need

not

accept

“Threadbare

a

plaintiff’s

recitals

of

the

legal

elements

conclusions
of

a

cause

true.12

as
of

action,

supported by mere conclusory statements, do not suffice.”13
II.

ALLEGATIONS
According to Hernandez, when he attempted to file CDC Form 602

grievances against Correctional Officers Olmos and Acosta they
destroyed

grievances,

precluding

processing,

and

allegedly

threatened his life. Hernandez further alleges that K. Sampson and
M. Nipper erroneously rejected CDC 602's because they were written
in pencil instead of pen. Daux, the Law Librarian, refused to
provide Hernandez a pen so that he could complete his CDC 602
Forms. Hernandez seeks injunctive relief enjoining the alleged
threats against his life and damages.
III. DISCUSSION
Hernandez has pending in this district Hernandez v. Olmos,
1:10-cv-01495-LJO-DLB, a civil rights action under 42 U.S.C. § 1983

11

Id. at 678 (quoting Twombly, 550 U.S. at 557).

12

Id.

13

Id. (quoting Twombly, 550 U.S. at 555).

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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB

in which he alleges that Correctional Officers Olmos, Acosta, and
Clinerd violated his civil rights in that they (1) regularly denied
him showers and (2) deprived him of his full meals.14 That action
arises out of the matters that were the subject of the CDC 602
grievances that he alleges were improperly destroyed or denied in
this action.
Because Hernandez has been transferred from Tehachapi to North
Kern County Prison, his injunctive relief claim has become moot.
The fact that his CDC 602 grievances were not processed presents a
somewhat different picture.
As noted above, exhaustion of administrative remedies is a
mandatory prerequisite to bringing a civil rights action under
§

1983.15

Thus,

unless

Hernandez

has

properly

exhausted

his

administrative remedies, his pending civil rights action, 1:11-cv01495, is subject to dismissal. That is the “injury” that Hernandez
would suffer as a result of the actions of Defendants in this case.
That does not, however, necessarily support granting relief in this
case. If, in fact, prison officials affirmatively interfered with
and

prevented

Hernandez

from

exhausting

his

administrative

14

This Court takes judicial of that case.

15

42 U.S.C. § 1997e(a); see Woodford, 548 U.S. at 93–95.

Fed. R. Evid.

201.

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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB

remedies, exhaustion may be excused.16 The appropriate remedy in
this case is for Hernandez to raise the actions of the Defendants
as a counter to any claim by the Defendants in 1:10-cv-01495 that
Hernandez has failed to exhaust his administrative remedies, not an
independent action. In the event Hernandez prevails in that case,
he will have suffered no harm. On the other hand, if Hernandez
fails to establish that Defendants interfered with his ability to
exhaust

his

administrative

remedies,

he

would

also

fail

to

establish that fact in this case. Consequently, because this Court
cannot render any effective relief beyond that available in the
pending

action,

1:10-cv-01492,

this

action

is

necessarily

duplicative and must be dismissed without prejudice to raising the
issue in that action.
IV.

ORDER
Based on the foregoing, it is hereby ORDERED as follows:
The Complaint is hereby DISMISSED in its entirety without

prejudice, and the Clerk of the Court is directed to enter judgment
accordingly.
IT IS SO ORDERED this 24th day of April, 2013.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

16

See Albino v. Baca, 697 F.3d 1023, 1034–35 (9th Cir.

2012).
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Hernandez v. Olmos, et al., 1:11-cv-01701-RRB