Burnett v. Meyst et al

Filing 13

ORDER signed by Magistrate Judge Stanley A. Boone on 12/9/13 directing Plaintiff to notify the Court of his intent to proceed on certain claims only re 1 Prisoner Civil Rights Complaint. (Filing Deadline: 1/13/2014). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTER BURNETT,

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Plaintiff,

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v.

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J. MEYST, et al.,

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Defendants.

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Case No.: 1:12-cv-01694-SAB (PC)
ORDER DIRECTING PLAINTIFF TO NOTIFY
THE COURT OF HIS INTENT TO PROCEED ON
CERTAIN CLAIMS ONLY
[ECF No. 1]

Plaintiff Ester Burnett is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action on September 12, 2012. Pursuant to 28

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U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on

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December 21, 2012. Local Rule 302.

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I.

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SCREENING REQUIREMENT

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

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

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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On November 15, 2009, Plaintiff wrote to Warden Yates informing him that prison officials

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were actively soliciting other inmate gang members to assault Plaintiff by openly calling him a child

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molester and rapist. Yates ignored Plaintiff’s letter, and Plaintiff was assaulted on February 4, 2010,

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by an inmate gang member.

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On November 19, 2009, at approximately 11:30 p.m. Sergeant B. Carr and correctional officers

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Valasquez and Negrere, assaulted Plaintiff while he was handcuffed behind the back by kicking his

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legs and punching him in the lower back and neck.

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On December 7, 2009, Plaintiff was summoned on the C-facility program office at

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approximately 9:00 a.m. by Captain A. Pineda. Plaintiff informed Pineda that correctional officers

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Salas, Roacha, E. Martinez, and Gallegos, were telling other inmate gang members he was a child
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molester and rapist with the intent for Plaintiff to be assaulted. Pineda got up from his desk and

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opened his office door and yelled, “I want everyone to he[ar] this I don’t give a fuck if you get

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stabbed, killed or assaulted you fuckin rapist get the fuck out of my office you[’re] a worthless piece

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of shit. You want me to stop my staff from openly calling you a rapist that’s not going to happen get

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the fuck out of my office.”

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On December 11, 2009, at approximately 7:00 p.m. correctional officers J. Meyst and Henry

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took over an escort that correctional officer A. Salas had initiated, and began to violently shove and

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push Plaintiff to the C-Facility program office. Once he was at the facility office, Plaintiff could not

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stand due to his back spasms. Meyst opened the holding cell and violently shoved Plaintiff in the cell

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and closed the door. When he was in the cell, Plaintiff fell to the floor due to his back spasms. Meyst

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became enraged Meyst, who then flung the cell door open and began screaming profanity at Plaintiff.

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Before Plaintiff could respond, Defendants Meyst and Henry grabbed him by the neck and pants and

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stated that he did not care about his medical problems. Meyst took Plaintiff by the neck and slammed

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his face against the back of the holding cell several times, and both Meyst and Henry repeatedly

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punched him in the back and neck area. Plaintiff suffered injuries as a result of the incident. During

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the incident, Lieutenant Rice and Sergeants B. Carr and B. Davi watched and laughed in amusement.
On December 12, 2009, at 4:00 p.m. correctional officers C. Morelock and A. Salas yelled out

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to all inmates in building 1 on C-facility that Plaintiff is a rapist with the intent to solicit gang

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members to assault Plaintiff. This conduct continued over a two and a half month period. On

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February 4, 2010, inmate Taylor, a gang member, assaulted Plaintiff stating that officials said he was a

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rapist.

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III.

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DISCUSSION

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A.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995 (1992)

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(citations omitted). For claims arising out of the use of excessive physical force, the issue is “whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
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sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178 (2010) (per

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curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted); Furnace v. Sullivan, 705

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F.3d 1021, 1028 (9th Cir. 2013). The objective component of an Eighth Amendment claim is

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contextual and responsive to contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation

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marks and citation omitted), and although de minimis uses of force do not violate the Constitution, the

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malicious and sadistic use of force to cause harm always violates contemporary standards of decency,

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regardless of whether or not significant injury is evident, Wilkins, 559 U.S. at 37-8, 130 S.Ct. at 1178

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(citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th

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Cir. 2002).

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The failure to intervene can support an excessive force claim where the bystander-officers had

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a realistic opportunity to intervene but failed to do so. Lolli v. County of Orange, 351 F.3d 410, 418

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(9th Cir. 2003); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); Robins v. Meecham, 60

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F.3d 1436, 1442 (9th Cir. 1995); see also Motley v. Parks, 383 F.3d 1058, 1071 (9th Cir. 2004)

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(neither officers who participated in the harassing search nor officers who failed to intervene and stop

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the harassing search were entitled to qualified immunity).

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1.

Defendants Carr, Valasquez and Negrere

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Plaintiff’s allegations that on November 19, 2009, Defendants Carr, Valasquez and Negrere

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assaulted while he was handcuffed by kicking and punching him state a cognizable claim, at the

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screening stage, for excessive force in violation of the Eighth Amendment.

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2.

Defendants Meyst, Henry, Rice, Carr and Davi

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Plaintiff’s allegations that on December 11, 2009, Defendants J. Meyst and Henry assaulted

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him by slamming his face against the wall, and repeatedly punching and kicking him in the back and

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neck area, states a cognizable claim for excessive force in violation of the Eighth Amendment.

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Plaintiff also states a cognizable claim against Defendants Lieutenant Rice and Sergeants B. Carr and

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B. Davi who watched and laughed during the incident.

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B.

Failure to Protect

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The Eighth Amendment requires that prison officials take reasonable measures for the safety of

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prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials have a duty to
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protect prisoners from violence at the hands of other prisoners. Id. at 822; Hearns v. Terhune, 413

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F.3d 1036, 1040 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). The failure of

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prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth

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Amendment violation where prison officials know of and disregard a substantial risk of serious harm

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to the plaintiff. Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040.

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1.

Defendant Pineda

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Plaintiff states a cognizable claim against Defendant Pineda for failure to protect based on his

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allegation that on December 7, 2009, Pineda yelled to the inmate population that Plaintiff was a rapist

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and he did not care about his safety.

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2.

Defendants Morelock and Salas

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Plaintiff states a cognizable claim for failure to protect against Defendants Morelock and Salas

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based on his allegations that on December 12, 2009, both officers yelled out to all the inmates in

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building 1 at C-facility that Plaintiff is a rapist with intent to solicit gang member inmates to assault

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him.

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3.

Defendant Warden Yates

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Plaintiff alleges that on November 15, 2009, he wrote a letter to Warden Yates informing him

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that correctional officers were informing other gang member inmates that Plaintiff was a rapist in an

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attempt for Plaintiff to be assaulted.

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Under section 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937,

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1948-49 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v.

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City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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superior, as each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 676-77,

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129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235.

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“participated in or directed the violations, or knew of the violations and failed to act to prevent them.”

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th

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Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);

Liability may not be imposed on supervisory personnel under the theory of respondeat

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Supervisors may only be held liable if they

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Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris

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v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff states a cognizable claim for failure to protect against Warden Yates based on his

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allegation that he wrote him a letter in February 2009, prior to the assault, and Yates failed to respond

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or take any other action.

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C.

Rule 18 of the Federal Rules of Civil Procedure

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Finally, although the Court has found that Plaintiff’s complaint states a cognizable claim

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against Defendants Carra, Valasquez, Negrere, Meyst, Henry, Rice, Carr and Davi for excessive force

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involving two separate incidents, and against Defendants Pineda, Morelock, Salas, and Yates for

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failure to protect in violation of the Eighth Amendment, the claims are unrelated and cannot be joined

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in a single action.

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The first incident involving the use of force occurred on November 19, 2009, by Defendants

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Carr, Valasquez and Negrere only. The second incident involving the use of force occurred on

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December 11, 2009, by Defendants Meyst, Henry, Rice, Carr and Davi. The failure to protect claim

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arises from incidents on separate days against Defendants Pineda, Morelock, Salas and Yates.

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Accordingly, Plaintiff has improperly joined three separate and distinct claims in this single complaint.

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Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. R.

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Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1)

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the claim arises out of the same transaction or occurrence, or series of transactions and occurrences,

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and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130

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F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d

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1371, 1375 (9th Cir. 1980). Plaintiff is attempting to bring claims regarding unrelated incidents in this

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complaint. Only if the defendants are properly joined under Rule 20(a) will the Court review the other

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claims to determine if they may be joined under Rule 18(a), which permits the joinder of multiple

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claims against the same party.

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Accordingly, if Plaintiff wishes to proceed on one of the claims found to be cognizable, he

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must notify the Court which claim he wishes to pursue in this action, and the other claims and

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defendants will be dismissed from the action.

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IV.

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CONCLUSION AND ORDER

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1.

Within thirty (30) days from date of service of this order, Plaintiff must notify the

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Court in writing that he wishes to proceed on one of the three claims found to be cognizable and

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specify which of the following unrelated claims he wishes to proceed with in his action:

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a.

Defendants Carr, Valasquez and Negrere for excessive force on November 19, 2009;

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b.

Defendants Meyst, Henry, Rice, Carr and Davi for excessive force on December 11,

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2009; or

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c.

Defendants Pineda, Morelock, Salas and Yates for failure to protect; and

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to

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obey a court order.

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IT IS SO ORDERED.
Dated:

December 9, 2013
UNITED STATES MAGISTRATE JUDGE

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