Polk v. Lattimore et al

Filing 120

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims, signed by Magistrate Judge Barbara A. McAuliffe on 8/7/2020. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,
v.
LATTIMORE, et al.,
Defendants.

Case No. 1:12-cv-01156-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS
(ECF No. 117)
FOURTEEN (14) DAY DEADLINE

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Plaintiff Susan Mae Polk (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action under 42 U.S.C. § 1983.
This action has a lengthy history, which the Court has summarized in prior orders and

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declines to set forth here. Relevant to the instant findings and recommendations, on November 5,

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2018, the assigned District Judge granted Plaintiff leave to file a fifth amended complaint “limited

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to her claim that defendant Barron labeled her as a ‘snitch’.” (ECF No. 113, p. 4.) Following an

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extension of time, Plaintiff filed a fifth amended complaint on February 4, 2019. (ECF No. 116.)

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Plaintiff filed another fifth amended complaint on February 15, 2019. (ECF No. 117.) Upon

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review of both filings, the Court concluded that the documents were both timely filed and

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identical aside from minor typographical and clerical corrections, and therefore ordered the

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February 4, 2019 document stricken as duplicative. (ECF No. 118.)
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Plaintiff’s fifth amended complaint, filed February 15, 2019, is currently before the Court

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for screening.

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I.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations
Plaintiff is currently housed at the California Institution for Women (“CIW”) in Corona,

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California. The events in the amended complaint are alleged to have occurred while Plaintiff was

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housed at Central California Women’s Facility (“CCWF”) in Chowchilla, California. Plaintiff

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has named Correctional Officer M. Baron as the sole defendant. Plaintiff sues Defendant Baron

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in his individual and official capacity. Plaintiff alleges as follows:

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Defendant Baron was Plaintiff’s housing officer during the time inmates had access to the

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Day Room and Yard. Inmate Janelle Miranda, Plaintiff’s cellmate at the time, had a history of

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violence against cellmates and was in the Mental Health Delivery System.

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On July 20, 2008, Plaintiff again informed Defendant Baron that Inmate Miranda had

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been threatening Plaintiff with great bodily harm. This was Plaintiff’s custom to do when such

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threats arose and when attacked by inmates. Defendant Baron did not take any steps to protect

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Plaintiff or ensure her safety. Instead, Defendant Baron ordered Plaintiff to return to the cell with

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Inmate Miranda.

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Defendant Baron informed Inmate Miranda that Plaintiff had told Baron Plaintiff was

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concerned for her own safety and that Miranda had threatened Plaintiff with great bodily harm.

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Defendant Baron also informed Inmate Miranda and Plaintiff’s other cellmates that Plaintiff was

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“602ing” (filing grievances against) staff members. Defendant Baron put what is known in prison

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as a “snitch jacket” on Plaintiff by informing Inmate Miranda that Plaintiff had told him Miranda

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was threatening Plaintiff’s life.

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On the evening of July 20, 2008, Inmate Miranda called Plaintiff a “snitch” and yelled at

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Plaintiff for complaining to Defendant Baron that Miranda had been threatening Plaintiff. Inmate

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Miranda also yelled at Plaintiff for “602ing” staff.

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Inmate Miranda was still yelling at Plaintiff and threatening Plaintiff for informing

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Defendant Baron that Miranda had threatened Plaintiff’s life and was ranting at Plaintiff about

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“602ing” staff when Plaintiff went to the locked cell door for the 8 p.m. Closed-A Count.

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Plaintiff’s back was to Inmate Miranda when Miranda cut open Plaintiff’s scalp by hitting

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Plaintiff on the back of her head with a hard plastic cup while Plaintiff was standing by the cell

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door for the count.

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Plaintiff’s scalp bled heavily, and she alleges she could have died from blood loss had she

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not applied a compress to her scalp. Plaintiff’s tee-shirt was drenched with blood. It took eight

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staples in the Emergency Room of the Madera Community Hospital to close the wound.

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Plaintiff requests a declaration that the acts and omissions described violated her rights
under the First, Eighth, and Fourteenth Amendments of the U.S. Constitution; a preliminary and
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permanent injunction to the Director of Adult Institutions and Plaintiff’s housing staff to protect

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her from the imminent danger imposed by having had a “snitch jacket” placed on her; and

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compensatory and punitive damages.

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III.

Discussion

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A.

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“Suits against state officials in their official capacity . . . should be treated as suits against

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the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of Corrs., 599 F.3d 1108,

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1111 (9th Cir. 2010) (treating prisoner’s suit against state officials in their official capacities as a

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suit against the state of California). An official capacity suit “represent[s] only another way of

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pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473

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U.S. 159, 165 (1985) (citation omitted). Such a suit “is not a suit against the official personally,

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for the real party in interest is the entity.” Id. at 166 (emphasis in original).

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Official Capacity

“The Eleventh Amendment bars suits for money damages in federal court against a state,

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its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public

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Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, Plaintiff’s claim for monetary damages

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against Defendant Baron in his official capacity is barred by the Eleventh Amendment.
First Amendment – Retaliation

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B.

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090,

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1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also

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Valandingham v. Bojorquez, 866 F. 2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807

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(9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); accord Watison

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v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d

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1262, 1269 (9th Cir. 2009).
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At the pleading stage, the Court finds that Plaintiff states a cognizable claim for retaliation

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against Defendant Baron in his individual capacity arising from allegations that Defendant Baron

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informed Plaintiff’s cellmate that Plaintiff had filed grievances against correctional staff, leading

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to Plaintiff’s assault at the hands of her cellmate.
Eighth Amendment – Deliberate Indifference

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C.

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Prison officials have a duty under the Eighth Amendment to protect prisoners from

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violence at the hands of other prisoners or others because being violently assaulted in prison is

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simply not part of the penalty that criminal offenders pay for their offenses against society.

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Farmer, 511 U.S. at 833-34; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v.

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Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the

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Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a

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substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference

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occurs when an official acted or failed to act despite his knowledge of a substantial risk of serious

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harm. Farmer v, Brennan, 511 U.S. 825, 834 & 841 (1994); Clem, 566 F.3d at 1181; Hearns, 413

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F.3d at 1040.

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The Ninth Circuit has held that allegations that prison officials called a prisoner a “snitch”

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in the presence of other inmates are sufficient to state a claim of deliberate indifference to an

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inmate’s safety. See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989).

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At the pleading stage, the Court finds that Plaintiff has stated a cognizable claim for

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deliberate indifference in violation of the Eighth Amendment against Defendant Baron in his

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individual capacity arising from allegations that he placed a “snitch jacket” on Plaintiff by

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informing Inmate Miranda that Plaintiff had reported Inmate Miranda’s threats on Plaintiff’s life.

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D.

Declaratory Relief

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To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood

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Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither

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serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the
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proceedings and afford relief from the uncertainty and controversy faced by the parties.” United

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States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the

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jury returns a verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff's

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constitutional rights were violated. Accordingly, a declaration that any defendant violated

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Plaintiff’s rights is unnecessary.

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E.

Injunctive Relief

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Plaintiff also requests injunctive relief ordering the Director of Adult Institutions and

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Plaintiff’s housing staff to protect her from the imminent danger imposed by having had a

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“snitch jacket” placed on her.
“[P]laintiff must show that he has sustained or is immediately in danger of sustaining

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some direct injury as the result of the challenged official conduct and the injury or threat of

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injury must be both real and immediate, not conjectural or hypothetical.” Jones v. City of Los

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Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006) (internal quotations and citations omitted). “The

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key issue is whether the plaintiff is ‘likely to suffer future injury. Jones, 444 F.3d at 1126.

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Furthermore, any award of equitable relief is governed by the Prison Litigation Reform Act,

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which provides in relevant part, “Prospective relief in any civil action with respect to prison

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conditions shall extend no further than necessary to correct the violation of the Federal right of a

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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief

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unless the court finds that such relief is narrowly drawn, extends no further than necessary to

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correct the violation of the Federal right, and is the least intrusive means necessary to correct the

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violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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To the extent Plaintiff is requesting injunctive relief specific to harm she might suffer at

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CCWF, that request is moot. See Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007)

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(prisoner’s claims for injunctive relief generally become moot upon transfer) (citing Johnson v.

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Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding claims for injunctive relief

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“relating to [a prison’s] policies are moot” when the prisoner has been moved and “he has

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demonstrated no reasonable expectation of returning to [the prison]”)).

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To the extent Plaintiff requests an order for injunctive relief against non-parties such as

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the Director of Adult Institutions, such a request is not “narrowly drawn” or the “least intrusive

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means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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Furthermore, only Defendant Baron is named as a defendant in this action. The Court’s

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jurisdiction is limited to the parties in this action and to the viable legal claims upon which this

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action is proceeding. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v.

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United States, 599 F.3d 964, 969 (9th Cir. 2010).

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IV.

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Conclusion and Recommendation
Based on the above, the Court finds that Plaintiff's fifth amended complaint states

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cognizable claims against Defendant Baron for retaliation in violation of the First Amendment

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and deliberate indifference in violation of the Eighth Amendment. Plaintiff fails to state any other

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cognizable claims. Despite being provided with the relevant pleading and legal standards,

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Plaintiff has been unable to cure the remaining deficiencies and further leave to amend is not

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warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, IT IS HEREBY RECOMMENDED as follows:
1. This action proceed on Plaintiff’s fifth amended complaint, filed February 15, 2019,

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against Defendant Baron for retaliation in violation of the First Amendment and deliberate

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indifference in violation of the Eighth Amendment.
2. All other claims be dismissed from this action based on Plaintiff’s failure to state claims

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upon which relief may be granted.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan,

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923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 7, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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