Griffin v. Johnson et al

Filing 26

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims, signed by Magistrate Judge Barbara A. McAuliffe on 8/3/2015, referred to Judge O'Neill. 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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MATTHEW JAMES GRIFFIN,

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Plaintiff,
v.
A. JOHNSON, et al.,

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Defendants.

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1:13-cv-01599-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS
(ECF No. 23)
FOURTEEN-DAY DEADLINE

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I.

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Plaintiff Matthew James Griffin (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On November 18, 2014,

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the Court screened Plaintiff’s complaint and found that it stated a cognizable Eighth Amendment

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claim for deliberate indifference to serious medical needs against Defendants Johnson, Gonzales,

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Valdez, Sexton, Ross, Thor, Doe, Kul, Busch and Bell, but failed to state any other cognizable

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claims. The Court directed Plaintiff to either file a first amended complaint or notify the Court

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that he wished to proceed on the cognizable claim. (ECF No. 17.) Plaintiff’s first amended

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complaint, filed on February 20, 2015, is currently before the Court for screening.

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Screening Requirement and Standard

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 or

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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)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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

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

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(internal quotation marks and citation omitted).

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

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at the Saguaro Correctional Center in Eloy, Arizona. The

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events in the complaint are alleged to have occurred while Plaintiff was housed at California

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State Prison-Corcoran. Plaintiff names the following defendants: (1) A. Johnson; (2) D.

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Gonzales; (3) A. Valdez; (4) D. Smith; (5) C. Munoz; (6) M. Sexton; (7) M. Ross; (8) F. Thor;

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(9) Jane Doe; (10) Kul; (11) Busch; and (12) Bell. Plaintiff brings suit against defendants in

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their individual capacities for monetary damages and in their official capacities for injunctive

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relief.

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Plaintiff alleges: On May 23, 2012, Defendants planned, participated in or supervised the

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use of chemical weapons on Yard 4A, inside Building 4R, within B section. B section contains

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twenty (20) cells, ten on the upper tier directly over ten on the lower tier. All prisoners housed in

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B section were Security Housing Unit (SHU) prisoners. Plaintiff was housed in cell #28.

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Before discharging chemical weapons inside B section, Defendants made statements,

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overt acts and gestures that expressed their intent to use force designed to directly affect

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bystander inmates in nearby cells within B section, including Plaintiff. Defendants discharged

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chemical weapons at the prisoner in cell #25 in a manner designed to direct the chemical

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weapons on bystander inmates, including Plaintiff. The use of chemical weapons allegedly was

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preplanned over a series of hours.

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Prior to the discharge of chemical weapons, Plaintiff asked Defendants Johnson,

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Gonzales, Valdez, Smith, Munoz, Sexton, Ross, Thor, Jane Doe, Kul, Busch and Bell to

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evacuate him to a secure area. Defendants refused to evacuate Plaintiff or order his evacuation.

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Defendant Johnson reminded Plaintiff that he had previously filed a staff complaint against

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Defendant Johnson for retaliation. The prior complaint was submitted on September 1, 2010.

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Plaintiff advised Defendant Johnson that there would be more complaints if chemical weapons

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were used and Plaintiff had not been evacuated to a safe area. Defendant Johnson refused to

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evacuate Plaintiff and stated, “You won’t be writing today – you’ll be choking on O.C.” (ECF

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No. 23, p. 10.) Defendant Valdez stated that he had enough pepper spray for everyone and told

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Plaintiff, “I brought enough for you too.” (Id.) Defendant Munoz told Plaintiff, “You’re not

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going to be evacuated.” (Id.) Defendant Munoz accused Plaintiff of wanting extra recreational

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yard. Plaintiff corrected Defendant Munoz, stating “I’m not asking for evacuation to a specific

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area, just anywhere that I won’t be pepper sprayed.” (Id.) Defendant Munoz told Plaintiff to get

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the other prisoner to behave and he would not be pepper sprayed. Defendant Sexton said, “Pull a

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couple of them out to make it look right.” (Id. at p. 11.) Defendants evacuated two prisoners

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from B section before using chemical weapons, but refused evacuation of all others. One of the

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evacuated prisoners was housed in cell #26.

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Before the use of chemical weapons, all defendants, except Smith, donned gas masks or

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filter masks. This action demonstrated their personal knowledge that the entire area of B section

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would be affected by the use of chemical weapons. Defendants used an extraordinary amount of

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chemical weapons inside B section. The chemical weapons discharged include: an X-10

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Barricade Removal Device with Oleoresin Capsicum (OC) pepper spray; three discharges of

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MK-9 OC Pepper Spray, detonation of at least two tactical T-16 OC grenades; and detonation of

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an OC-V Aerosol Grenade.

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Plaintiff alleges he is a former member of an elite Marine Corps special operations unit
and a graduate of the U.S. Army Airborne School and the Marine Corps Amphibians

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Reconnaissance School. He reportedly completed a Marine Corps nuclear, biological and

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chemical weapons course. In his Reconnaissance Company, Plaintiff was the Sergeant in charge

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of training and operations and reportedly taught close quarter battle to special operations forces,

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which included the use of chemical grenades.

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Plaintiff contends that the detonation of two T-16 OC grenades and an OC-V aerosol

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grenade took place while he was housed within cell #28 within the maximum effective radius of

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the chemical weapons. Plaintiff asserts that the use of the grenades within the confined area of B

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section was a direct use of force against everyone within the effective radius not wearing

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protective clothing or mask, including Plaintiff. The use of chemical weapons was planned to

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directly affect all prisoners confined within their cells inside B section.

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Plaintiff contends that each of the defendants knew that the chemical weapons would

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necessarily result in force being directed at all prisoners confined in B section. Plaintiff alleges

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that whether or not Defendants had justification to use force against the targeted prisoner, they

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used chemical weapons in a malicious and sadistic manner designed and calculated to directly

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injure other prisoners, including Plaintiff, without any legitimate justification. Plaintiff also

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alleges that Defendants used the incident with the other prisoner as a pretext to assault all

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prisoners remaining in B section, including Plaintiff, with chemical weapons.

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Defendants Ross, Thor and Valdez discharged OC pepper spray from a Barricade
Removal Device. Defendant Valdez discharged all other weapons. All defendants, except
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Smith, were present when the chemical weapons were discharged and were wearing protective

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equipment. Each of the defendants knew that the prisoners, including Plaintiff, had no protective

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equipment, but defendants planned a use of chemical weapons that would directly injure

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everyone without protective equipment.

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Defendants Sexton, Munoz, Valdez and Johnson are supervisors. Each was personally

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present before, during and after the use of chemical weapons. These defendants failed to take

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action to minimize the effect of chemical agents on bystander inmates, including Plaintiff. The

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targeted prisoner eventually was extracted from his cell and given a decontamination shower.

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Plaintiff did not receive a decontamination shower until five days later on May 28, 2012, and

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suffered pain needlessly in the interim.
Defendants knew the entire area of B section and all prisoners were injured by the use of

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chemical weapons. Defendants evacuated themselves from the area, but left the prisoners,

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including Plaintiff, to suffer needlessly for days. After the use of chemical weapons, Plaintiff

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personally asked Defendants Johnson, Gonzales, Valdez, Munoz, Sexton, Ross, Thor, Doe, Kul,

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Busch and Bell for medical treatment and a contamination shower. Each of these defendants

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refused to provide medical care or a decontamination shower to Plaintiff. Plaintiff alleges that he

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later asked Defendant Smith for medical treatment and a decontamination shower, but Defendant

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Smith refused.

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Plaintiff alleges that he was injured by the chemical weapons, including irritation and

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burning of the eyes and skin, difficulty breathing and respiratory distress, uncontrolled coughing

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and spasms, resulting in the dislocation of his right shoulder and painful relocation, and

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insomnia. Plaintiff turned in three written requests for medical treatment in relation to his

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injuries, but was not given a decontamination shower until May 28 or taken for a medical

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appointment until May 29. Two of Plaintiff’s written requests were personally delivered to

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Defendant Gonzales. These requests were not logged into Plaintiff’s prison medical records.

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Plaintiff’s shoulder was x-rayed in January 2013. He continues to suffer pain in his right
shoulder.

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Plaintiff contends that Defendants Johnson, Gonzales, Valdez, Smith, Munoz, Sexton,

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Ross, Thor, Jane Doe, Kul, Busch and Bell knew from their conversation with Plaintiff or their

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personal participation in the use of chemical weapons of the need to decontaminate the affected

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prisoners and provide medical treatment for the injured, including Plaintiff. Defendants failed to

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do so. Plaintiff alleges that defendants knew of and disregarded an excessive risk to his health

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and safety.

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Plaintiff contends that after the use of chemical agents in B section, the two evacuated

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prisoners were returned to their cells. The prisoner returned to cell #26 was so severely affected

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that he was later moved to a different housing unit.
Plaintiff’s asserts the following causes of action: (1) excessive force in violation of the

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Eighth Amendment against Defendants Johnson, Gonzales, Valdez, Smith, Munoz, Sexton,

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Ross, Thor, Jane Doe, Kul, Busch and Bell; (2) denial of medical care in violation of the Eighth

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Amendment against Defendants Johnson, Gonzales, Valdez, Smith, Munoz, Sexton, Ross, Thor,

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Jane Doe, Kul, Busch and Bell; and (3) retaliation in violation of the First Amendment against

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Defendant Johnson.

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Plaintiff seeks compensatory and punitive damages, along with declaratory and injunctive
relief.
III.

Discussion
A. Eighth Amendment - Excessive Force

To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,

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452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The inquiry as to whether a

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prison official’s use of force constitutes cruel and unusual punishment is “whether force was

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

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cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992);

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Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986).

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“The objective component of an Eighth Amendment claim is ... contextual and

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responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S.Ct. at 1000
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(internal quotation marks and citations omitted). A prison official’s use of force to maliciously

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and sadistically cause harm violates the contemporary standards of decency. Wilkins v. Gaddy,

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559 U.S. 34, 37, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010). However, “[n]ot ‘every

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malevolent touch by a prison guard gives rise to a federal cause of action.” Wilkins, 559 U.S. at

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37 (quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000). Factors that can be considered are “the

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need for the application of force, the relationship between the need and the amount of force that

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was used, [and] the extent of injury inflicted.” Whitley, 475 U.S. at 321, 106 S.Ct. at 1085;

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Marquez v. Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003). Although the extent of the injury is

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relevant, the inmate does not need to sustain serious injury. Wilkins, 130 S.Ct. at 1178–79;

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Hudson, 503 U.S. at 7, 112 S.Ct. at 999.
At the pleading stage, Plaintiff has stated a claim for excessive force in violation of the

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Eighth Amendment against Defendants Johnson, Gonzales, Valdez, Smith, Munoz, Sexton,

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Ross, Thor, Doe, Kul, Busch and Bell.

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B. Eighth Amendment - Deliberate Indifference to Serious Medical Needs
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

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L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show

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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2)

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“the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096;

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.

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2010). “Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could

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make an inference that “a substantial risk of serious harm exists” and he must make the

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inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “The indifference to a prisoner's
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medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’

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will not support this claim. Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs.” Lemire v. California Dep’t of Corr.and Rehab., 726 F.3d

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1062, 1081–82 (9th Cir. 2013) (internal citations omitted).

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At the pleading stage, Plaintiff has stated a cognizable deliberate indifference claim

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against Defendants Johnson, Gonzales, Valdez, Munoz, Sexton, Ross, Thor, Jane Doe, Kul,

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Busch, Bell and Smith.

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C. First Amendment – Retaliation
Plaintiff alleges that Defendant Johnson retaliated against him in violation of the First

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Amendment. “Prisoners have a First Amendment right to file grievances against prison officials

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and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.

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2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). The First Amendment also

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protects the right to pursue civil rights litigation in federal court without retaliation. Silva v. Di

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Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that

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such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–

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68 (9th Cir. 2005).

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Plaintiff has failed to state a cognizable retaliation claim against Defendant Johnson.

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Plaintiff alleges that Defendant Johnson refused to evacuate Plaintiff from B section because of a

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staff complaint Plaintiff filed in 2010. However, Plaintiff also alleges that only two prisoners

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were evacuated from B section prior to the use of pepper spray. This indicates that Plaintiff was

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not singled out because of any protected conduct. This defect cannot be cured by amendment.

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D. Declaratory Relief
Plaintiff seeks a declaration that his rights were violated. “A declaratory judgment, like

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other forms of equitable relief, should be granted only as a matter of judicial discretion,

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exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426,
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431, 68 S.Ct. 641, 92 L.Ed. 784 (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). In the event that this action reaches

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trial and the jury returns a verdict in favor of Plaintiff, the verdict will be a finding that Plaintiff's

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constitutional rights were violated. Accordingly, a declaration that a defendant violated Plaintiff's

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rights is unnecessary.

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E. Injunctive Relief

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Plaintiff seeks injunctive relief from defendants. However, Plaintiff is no longer

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incarcerated at California State Prison – Corcoran or in California. Instead, he has been

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transferred to Saguaro Correctional Center in Arizona. As a result, his claim for injunctive relief

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is now moot. See Holt v. Stockman, 2012 WL 259938, *6 (E.D. Cal. Jan. 25, 2012) (a prisoner's

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claim for injunctive relief is rendered moot when he is transferred from the institution whose

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employees he seeks to enjoin); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir.

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2007).

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F. Doe Defendant
“As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.” Gillespie

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v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that the Jane Doe defendant

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(i.e., the unknown defendant) cannot be served by the United States Marshal until Plaintiff has

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identified her as an actual individual and amended his complaint to substitute a name for the Jane

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Doe defendant.

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IV.

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Plaintiff has stated cognizable claims for excessive force and deliberate indifference to

Conclusion and Recommendation

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serious medical needs in violation of the Eighth Amendment against Defendants Johnson,

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Gonzales, Valdez, Munoz, Sexton, Ross, Thor, Doe, Kul, Busch, Bell, and Smith, but has failed

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to state any other cognizable claims. Although Plaintiff was given an opportunity to file an

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amended complaint, he has been unable to cure the identified deficiencies and further leave to

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amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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For the reasons stated, IT IS HEREBY RECOMMENDED that:

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This action proceed on Plaintiff’s first amended complaint, filed on February 20,

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2015, for excessive force and deliberate indifference to serious medical needs in violation of the

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Eighth Amendment against Defendants Johnson, Gonzales, Valdez, Munoz, Sexton, Ross, Thor,

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Doe, Kul, Busch, Bell, and Smith; and

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Plaintiff’s remaining claims be dismissed from this action, along with his requests

for declaratory and injunctive relief.

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

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

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 3, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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