Bealer v. Warden of K.V.S.P. et al

Filing 22

FINDINGS and RECOMMENDATIONS Recommending that this 21 Action Proceed Against Defendants Rios and Brannum for Use of Excessive Force, and that all other Claims and Defendants be Dismissed from this Action for Plaintiff's Failure to State a Claim; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 5/7/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/12/2014. (Sant Agata, S)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANTWOINE BEALER,

12

Plaintiff,

13

vs.

14

KVSP WARDEN, et al.,

15

Defendants.

16
17

1:12-cv-01516-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED AGAINST DEFENDANTS
RIOS AND BRANNUM FOR USE OF
EXCESSIVE FORCE, AND THAT ALL
OTHER CLAIMS AND DEFENDANTS BE
DISMISSED FROM THIS ACTION FOR
PLAINTIFF‟S FAILURE TO STATE A
CLAIM
(Doc. 21.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

18
19
20

I.

BACKGROUND

21

Antwoine Bealer (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

22

with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

23

commencing this action on September 14, 2012. (Doc. 1.) On September 18, 2012, the court

24

issued an order striking the Complaint for lack of signature. (Doc. 4.) On October 4, 2012,

25

Plaintiff filed the First Amended Complaint. (Doc. 8.) The court screened the First Amended

26

Complaint pursuant to 28 U.S.C. § 1915A and issued an order on October 24, 2012, dismissing

27

the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On

28

January 2, 2013, Plaintiff filed the Second Amended Complaint. (Doc. 15.) On September 16,
1

1

2013, Plaintiff filed a motion to amend the complaint, which was granted by the court on

2

September 17, 2013. (Docs. 16, 17.) On October 21, 2013, Plaintiff filed the Third Amended

3

Complaint. (Doc. 19.) The court screened the Third Amended Complaint and issued an order

4

on March 4, 2014, dismissing the Third Amended Complaint for failure to state a claim, with

5

leave to amend. (Doc. 20.) On March 28, 2014, Plaintiff filed the Fourth Amended Complaint,

6

which is now before the court. (Doc. 21.)

7

II.

SCREENING REQUIREMENT

8

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

9

governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

10

The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

11

legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

12

that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

13

' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

14

paid, the court shall dismiss the case at any time if the court determines that . . . the action or

15

appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

16

A complaint is required to contain Aa short and plain statement of the claim showing

17

that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

18

are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

19

mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

20

1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

21

(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

22

unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

23

(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

24

matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

25

at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

26

possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

27

v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

28

///
2

1

III.

SUMMARY OF FOURTH AMENDED COMPLAINT

2

Plaintiff is an inmate in the custody of the California Department of Corrections and

3

Rehabilitation (CDCR), presently incarcerated at Kern Valley State Prison (KVSP) in Delano,

4

California, where the events at issue in the Fourth Amended Complaint allegedly occurred.

5

Plaintiff names as defendants the Warden of KVSP, Associate Warden P. Denny, Sergeant R.

6

Brannum, Sergeant Epperson, Correctional Officer (C/O) S. Rios, and Jane Doe (Correctional

7

Nurse). Plaintiff‟s factual allegations consist of the following, in their entirety:

8

On November 1st, 2010, Officers Rios and Brannum were escorting me to the
Program Office for refusing a cell mate. Officer Brannum said to me
repeatedly, “You‟re running the yard now?!” I asked him what he was talking
about. Shortly after, I was pushed/thrown to the ground and Officer Brannum
said, “Sometimes we think that we are being tough, then we find out that we are
not so tough,” while my arms were being bent in awkward positions and knees
were being placed in my back and on my legs. After, I was placed in the cage
inside the Program Office. I asked Officer Epperson if he could remove the
handcuffs from my wrists and legs. He replied, “I don‟t give a f--- about you.”
I stated that he would not say that on the report. He then said, “You can tell
them that I told you to suck my sweaty salty s---.” I responded that I would.
While the nurse was examining me, I noticed that she was not marking down my
injuries or recording that they were bleeding. I questioned her as to why, and
she replied that she did not see anything. After I had been in ASU
(Administrative Segregation Unit) for approximately 7 months, Associate
Warden P. Denny placed me on behavior modification for again refusing a cell
mate, and all of my property was taken, including eating utensils, hygiene
products, sheets, blankets, and t-shirts.

9
10
11
12
13
14
15
16
17

(Fourth Amd Cmp, Doc. 21 at 3-4 ¶IV.) Plaintiff requests monetary damages and
18

injunctive relief.
19

IV.

PLAINTIFF’S CLAIMS

20

The Civil Rights Act under which this action was filed provides:
21

24

Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

25

42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

26

Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

27

(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

28

///

22

23

3

1

deprivation of a state-created interest that reaches beyond that guaranteed by the federal

2

Constitution, Section 1983 offers no redress.@ Id.

3

To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

4

under color of state law and (2) the defendant deprived him of rights secured by the

5

Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

6

2006). AA person >subjects= another to the deprivation of a constitutional right, within the

7

meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

8

or omits to perform an act which he is legally required to do that causes the deprivation of

9

which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

10

requisite causal connection can be established not only by some kind of direct, personal

11

participation in the deprivation, but also by setting in motion a series of acts by others which

12

the actor knows or reasonably should know would cause others to inflict the constitutional

13

injury.@ Id. at 743-44).

14

A.

15

Plaintiff names defendants who hold supervisory positions, such as the Warden and

16

Associate Warden. Liability may not be imposed on supervisory personnel under section 1983

17

on the theory of respondeat superior, as each defendant is only liable for his or her own

18

misconduct. Iqbal, 556 U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

19

2009). A supervisor may be held liable only if he or she Aparticipated in or directed the

20

violations, or knew of the violations and failed to act to prevent them.@ Taylor v. List, 880 F.2d

21

1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011);

22

Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

23

Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189,

24

1204 (9th Cir. 1997). Under section 1983, Plaintiff must demonstrate that each defendant

25

personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934

26

(9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that each defendant, through his

27

or her own individual actions, violated Plaintiff=s constitutional rights. Iqbal, 556 U.S. at 676.

28

///

Supervisory Liability

4

1

Plaintiff does not allege any personal acts by the Warden or Associate Warden in the

2

Fourth Amended Complaint. Therefore, Plaintiff fails to state any claims against the Warden,

3

Associate Warden, or any other defendant, based upon supervisory liability.

4

B.

5

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

6

Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .@ Hudson

7

v. McMillian, 503 U.S. 1, 8 (1992). AThe objective component of an Eighth Amendment claim

8

is . . . contextual and responsive to contemporary standards of decency.@ Id. (internal quotation

9

marks and citations omitted). The malicious and sadistic use of force to cause harm always

10

violates contemporary standards of decency, regardless of whether or not significant injury is

11

evident.

12

Amendment excessive force standard examines de minimis uses of force, not de minimis

13

injuries)). However, not Aevery malevolent touch by a prison guard gives rise to a federal cause

14

of action.@ Id. at 9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments

15

necessarily excludes from constitutional recognition de minimis uses of physical force,

16

provided that the use of force is not of a sort >repugnant to the conscience of mankind.@ Id. at

17

9-10 (internal quotations marks and citations omitted).

Excessive Force

Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

18

A[W]henever prison officials stand accused of using excessive physical force in

19

violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

20

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

21

sadistically to cause harm.@ Id. at 7. AIn determining whether the use of force was wanton and

22

unnecessary, it may also be proper to evaluate the need for application of force, the relationship

23

between that need and the amount of force used, the threat reasonably perceived by the

24

responsible officials, and any efforts made to temper the severity of a forceful response.@ Id.

25

(internal quotation marks and citations omitted). AThe absence of serious injury is . . . relevant

26

to the Eighth Amendment inquiry, but does not end it.@ Id.

27

Plaintiff states a cognizable claim in the Fourth Amended Complaint against defendants

28

Sergeant Brannum and C/O Rios for use of excessive force in violation of the Eighth
5

1

Amendment. However, Plaintiff fails to state an excessive force claim against any of the other

2

defendants.

3

C.

4

Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d

5

728, 730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is

6

actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104

7

S.Ct. 3194 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct.

8

1148 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), A[a]n unauthorized

9

intentional deprivation of property by a state employee does not constitute a violation of the

10

procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

11

meaningful postdeprivation remedy for the loss is available,@ Hudson, 468 U.S. at 533.

Confiscation of Personal Property

12

California Law provides an adequate post-deprivation remedy for any property

13

deprivations. See Cal. Gov't Code '' 810-895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th

14

Cir. 1994). California=s Tort Claims Act requires that a tort claim against a public entity or its

15

employees be presented to the California Victim Compensation and Government Claims Board,

16

formerly known as the State Board of Control, no more than six months after the cause of

17

action accrues.

18

Presentation of a written claim, and action on or rejection of the claim are conditions precedent

19

to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116,

20

124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470,

21

1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege

22

compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at 1245, 90 P.3d at

23

124, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police

24

Dept., 839 F.2d 621, 627 (9th Cir. 1988).

Cal. Gov=t Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2006).

25

Plaintiff alleges that when he was confined in administrative segregation, all of his

26

property was taken from him, including eating utensils, hygiene products, sheet, blankets, and

27

t-shirts.

28

permanently deprived of the property. To the extent that the deprivation of property was

Plaintiff does not name a defendant who took the property, or whether he was

6

1

intentional and unauthorized, Plaintiff=s remedy would be found under California law. Plaintiff

2

fails to show compliance with the California Tort Claims Act, and therefore his property claim

3

is not cognizable under federal or state law.
Adverse Conditions of Confinement – Eighth Amendment Claim

4

D.

5

The Eighth Amendment protects prisoners from inhumane methods of punishment and

6

from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

7

Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim,

8

and only those deprivations denying the minimal civilized measure of life=s necessities are

9

sufficiently grave to form the basis of an Eighth Amendment violation. Hudson, 503 U.S. at 9.

10

In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts

11

sufficient to support a claim that prison officials knew of and disregarded a substantial risk of

12

serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v.

13

Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The circumstances, nature, and duration of the

14

deprivations are critical in determining whether the conditions complained of are grave enough

15

to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731

16

(9th Cir. 2006). A[R]outine discomfort inherent in the prison setting@ does not rise to the level

17

of a constitutional violation. Id. at 731.

18

Plaintiff alleges that when he was confined in administrative segregation, all of his

19

property was taken from him, including eating utensils, hygiene products, sheet, blankets, and

20

t-shirts. The denial of adequate clothing may, under certain circumstances, rise to the level of

21

an Eighth Amendment violation. Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir. 1994). The

22

Eighth Amendment guarantees sanitation, Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.

23

1982), including personal hygiene supplies such as soap and toothpaste, Keenan v. Hall, 83

24

F.3d 1083, 1091 (9th Cir. 1996). However, the Constitution only requires a prison to provide a

25

prisoner with Aadequate@ hygiene, Hoptowit, 682 F.2d at 1246, and A>[T]he circumstances,

26

nature, and duration of a deprivation of [ ] necessities must be considered in determining

27

whether a constitutional violation has occurred,=@ Hearns v. Terhune, 413, F.3d 1036, 1042

28

(9th Cir. 2005) (quoting Johnson, 217 F.3d at 731).
7

1

Plaintiff=s allegations do not rise to the level of an Eighth Amendment violation.

2

Plaintiff has not described sufficiently serious deprivations. To constitute cruel and unusual

3

punishment in violation of the Eighth Amendment, prison conditions must involve the Awanton

4

and unnecessary infliction of pain.@ Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

5

E.

Inadequate Medical Treatment – Eighth Amendment Claim

6

A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

7

inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

8

1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

9

The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

10

medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

11

further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

12

defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

13

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

14

Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

15

omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

16

prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

17

McGuckin, 974 F.2d at 1060).

18

officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

19

the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

20

delay in receiving medical treatment, the delay must have led to further harm in order for the

21

prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

22

1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

23

1985)).

Deliberate indifference may be manifested Awhen prison

24

ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

25

1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

26

facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

27

that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If

28

a prison official should have been aware of the risk, but was not, then the official has not
8

1

violated the Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v.

2

County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). AA showing of medical

3

malpractice or negligence is insufficient to establish a constitutional deprivation under the

4

Eighth Amendment.

5

constitutional violation.@ Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

6

1990)).

Id. at 1060.

A[E]ven gross negligence is insufficient to establish a

7

Plaintiff alleges that when the Jane Doe Nurse examined him after he was assaulted, she

8

did not mark down his injuries or record that he was bleeding, stating that she did not see

9

anything. Plaintiff has not alleged facts showing that the Nurse‟s conduct caused him any

10

harm. Therefore, Plaintiff fails to state a medical claim against the Jane Doe Nurse.

11

F.

12

Plaintiff alleges that defendant Epperson harassed him by suggesting that Plaintiff

13

should “suck my sweaty salty s---.” (Fourth Amended Cmp at 3 ¶IV.) To the extent that

14

Plaintiff claims that he was subject to sexual harassment, Plaintiff fails to state an Eighth

15

Amendment claim. “After incarceration, only the unnecessary and wanton infliction of pain

16

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Watison v.

17

Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citing Jordan v. Gardner, 986 F.2d 1521, 1525

18

(9th Cir. 1993) (en banc)). “The alleged pain may be physical or psychological.” (Id.)

19

“Nevertheless, the inmate must objectively show that he was deprived of something

20

„sufficiently serious.”‟ Watison at 1112 (internal quotation marks and citations omitted). Any

21

“humiliation” Plaintiff allegedly suffered from the incident with defendant Epperson “does not

22

rise to the level of severe psychological pain required to state an Eighth Amendment claim.”

23

Watison at 1113.

Sexual Harassment or Verbal Harassment

24

To the extent that Plaintiff claims he was subject to verbal harassment, Plaintiff also

25

fails to state a claim. Mere verbal harassment or abuse alone is not sufficient to state a

26

constitutional deprivation under 42 U.S.C. ' 1983.

27

Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

28

///
9

Watison, 668 F.3d at 1113; accord

1

Therefore, Plaintiff fails to state a claim against defendant Epperson for sexual or verbal

2

harassment.

3

V.

CONCLUSION AND RECOMMENDATIONS

4

The Court finds that Plaintiff=s Fourth Amended Complaint states a cognizable claim

5

against defendants Sergeant Brannum and C/O Rios for use of excessive force in violation of

6

the Eighth Amendment. However, Plaintiff fails to state any claims under § 1983 against any

7

of the other defendants.

8

opportunities to amend the complaint, with ample guidance by the Court.

9

filed five complaints in this action. The Court finds that the deficiencies outlined above are not

10

capable of being cured by amendment, and therefore further leave to amend should not be

11

granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

In this action, the Court previously granted Plaintiff multiple
Plaintiff has now

12

Therefore, IT IS HEREBY RECOMMENDED that this action proceed with the

13

Fourth Amended Complaint filed on March 28, 2014, against defendants Sergeant Brannum

14

and C/O Rios for use of excessive force in violation of the Eighth Amendment, and that all

15

other claims and defendants be dismissed from this action for Plaintiff‟s failure to state a claim

16

under § 1983.

17

These Findings and Recommendations will be submitted to the United States District

18

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

19

thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

20

file written objections with the court. The document should be captioned AObjections to

21

Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

22

objections within the specified time may waive the right to appeal the District Court=s order.

23

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

24
25
26
27

IT IS SO ORDERED.
Dated:

May 7, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

28
10

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28
11