McCoy v. Ramirez et al

Filing 12

ORDER REQUIRING Plaintiff to Either File an Amended Complaint OR Notify Court of Willingness to Proceed Only on Cognizable Claim 10 , signed by Magistrate Judge Michael J. Seng on 1/13/15: Thirty Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12
LAKEITH LEROY MCCOY,

CASE NO. 1:13-cv-01808-MJS

13
Plaintiff,

14
v.

15
16

J. RAMIREZ, et al.,

Defendants.

17
18

ORDER REQUIRING PLAINTIFF TO
EITHER FILE AN AMENDED COMPLAINT
OR NOTIFY COURT OF WILLINGNESS
TO PROCEED ONLY ON COGNIZABLE
CLAIM
(ECF NO. 10)
THIRTY DAY DEADLINE

19
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
20
21
22
23
24
25
26
27
28

rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 5.) Plaintiff has
consented to Magistrate Judge jurisdiction. (ECF No. 6.)
The Court screened Plaintiff’s complaint and dismissed it for failure to state a
claim but gave leave to amend. (ECF No. 9.) Plaintiff’s First Amended Complaint (ECF
No. 10.) is now before the Court for screening.
I.

SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

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

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

§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous, malicious,” or that fail “to state a claim upon
which relief may be granted,” or that “seek monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
II.

PLEADING STANDARD
Section 1983 “provides a cause of action for the ‘deprivation of any rights,

privileges, or immunities secured by the Constitution and laws’ of the United States.”
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights conferred elsewhere.’” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
To state a claim under Section 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution and laws of the United States was
violated and (2) that the alleged violation was committed by a person acting under the
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v.
Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. Facial plausibility demands more than the mere possibility

27
28
2

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

that a defendant committed misconduct and, while factual allegations are accepted as
true, legal conclusions are not. Id.
III.

PLAINTIFF’S ALLEGATIONS
Plaintiff names as Defendants Captain K. Allen, Sergeant K. Campbell, Lieutenant

E. Coontz, Associate Warden J. Gutierrez, and Correctional Officers: J. Ramirez, A.C.
Little, R. Curliss, Donnahue, C. Riley, Morgan, Mullins, S. Sanchez III, and V. Marquez.
Plaintiff alleges essentially the following:
On July 10, 2013, Defendants Ramirez and Mullins escorted Plaintiff in handcuffs
from the law library to his cell. Plaintiff had previously overheard Defendant Ramirez say
he wanted to get into an altercation with an inmate so he could fake injury. During
escort, Defendant Ramirez stated to Plaintiff, “what the fuck is your problem; you have
an attitude with my partner (C.O. Mullins) and you’re suing Cacciola.” (ECF No. 10 at 5.)
Plaintiff attempted to diffuse the situation by obeying all orders, but Defendant Ramirez
tried to push Plaintiff into a door, injuring Plaintiff’s arm and wrist. Plaintiff saw a nurse
for his injury.
Defendant Mullins was present but did not intervene. Defendant Ramirez later
told Plaintiff “the next time you come out, I’m going to fuck you up!” (ECF No. 10 at 6.)
Plaintiff further complains that on numerous occasions Defendants retaliated
against him for filing grievances and suing fellow Correctional Officer Cacciola. In this
regard, Plaintiff alleges:
Cell Searches
On July 12, 2013, Defendants Ramirez and Little searched Plaintiff’s cell and took
his personal and legal property.
On August 24, 2013, Defendants Curliss and Donnahue searched Plaintiff’s cell
and took his personal property. Defendants Curliss and Morgan provided Plaintiff with a
cell search slip.
On October 26, 2013, Defendants Sanchez and Marquez entered Plaintiff’s cell

28
3

1

and took his legal documents, without providing a cell search slip.

2

Housing Transfer

3
4
5
6

Defendant Campbell transferred Plaintiff to a different housing unit after
Defendants Ramirez and Little informed him that they felt threatened by Plaintiff. There
Defendant Curliss told Plaintiff “if you come to my building pushing paperwork, we’re
going to come in there (the cell) and get crackin!” (ECF No. 10 at 11.)

7

Disciplinary Violation

8
9

On August 24, 2013, Defendant Curliss filed a fabricated rules violation report
(“RVR”) against Plaintiff.

10
11
12
13
14
15
16

Plaintiff objected to Defendant Riley assisting him as Investigative Employee at
the RVR hearing and refused to attend. Riley falsely stated that Plaintiff lodged no
objection and had no evidence to present. Defendant Coontz rejected Plaintiff’s written
statement for use at the hearing and denied Plaintiff the right to have a different
Investigative Employee assigned to him and to present witnesses. Defendant Coontz
fabricated his report and found Plaintiff guilty. Defendant Allen reviewed the false report
and Defendant Gutierrez finalized it.

17

State Claim

18
19
20
21
22
23
24
25

Defendant Curliss violated California Civil Code § 52.1 by threatening to enter his
cell and fight him.
IV.

ANALYSIS
A.

Excessive Force and Failure to Intervene

To state an excessive force claim, a plaintiff must allege facts to show that the
use of force involved an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez,
267 F.3d 895, 910 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
Whether the force applied inflicted unnecessary and wanton pain turns on whether the

26

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

27

and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The Court

28
4

1
2
3
4

must look at the need for application of force; the relationship between that need and the
amount of force applied; the extent of the injury inflicted; the extent of the threat to the
safety of staff and inmates as reasonably perceived by prison officials; and any efforts
made to temper the severity of the response. See Whitley, 475 U.S. at 321.

5

Not “every malevolent touch by a prison guard gives rise to a federal cause of

6

action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and

7

unusual punishments necessarily excludes from constitutional recognition de minimis

8

uses of physical force, provided that the use of force is not of a sort repugnant to the

9

conscience of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v.

10

Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard

11

examines de minimis uses of force, not de minimis injuries).

12

Plaintiff alleges that while he was handcuffed behind his back, Defendant

13

Ramirez, on two separate occasions, used his entire body weight to attempt to push

14

Plaintiff into a door. Prior to this use of force, Defendant Ramirez indicated an intent to

15

unnecessarily start an altercation with an inmate and told Plaintiff he was upset with him.

16

During the escort, Plaintiff was compliant with all of Defendant Ramirez’s orders.

17

Plaintiff’s arm and wrist were permanently injured, and he sought out medical treatment

18

but no diagnosis was given or imaging made. Plaintiff grieved the incident and received

19

no relief, yet Defendant Ramirez was ordered to stay away from him. Accepting these

20

allegations as true, as the Court must at the pleading stage, Plaintiff has sufficiently

21

alleged the unnecessary and wanton infliction of pain and the malicious or sadistic use

22

of force to cause harm. Plaintiff has stated a cognizable Eighth Amendment excessive

23

force claim against Defendant Ramirez.

24

To establish a violation of a prison official’s duty to take reasonable steps to

25

protect inmates from physical abuse, the prisoner must establish that prison officials

26

were “deliberately indifferent” to serious threats to the inmate's safety. Farmer, 511 U.S.

27

at 834. “Mere negligence is not sufficient to establish liability.” Frost v. Agnos, 152 F.3d

28

1124, 1128 (9th Cir. 1998).

Rather, a plaintiff must set forth facts to show that a
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511
U.S. at 837. That is, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Id.
Plaintiff alleges that Defendant Mullins was present when Defendant Ramirez
attempted to push him into the door.

However, he fails to allege facts to indicate

Defendant Mullins was on notice of Ramirez’s intent to harm Plaintiff, or otherwise had a
reasonable opportunity to intervene. Plaintiff was advised of this deficiency in his claim
in the Court’s prior screening order. (ECF No. 9.) His failure to correct it is reasonably
construed as reflecting an inability to do so.

Leave to amend the claim against

Defendant Mullins would be futile and is denied.
B.

Retaliation

“[P]risoners have a First Amendment right to file prison grievances” and to be free
from retaliation for exercising this right. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). There are five elements

16

to a First Amendment retaliation claim: “(1) An assertion that a state actor took some

17

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

18

and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

19

(5) the action did not reasonably advance a legitimate correctional goal.” Rhodes, 408

20
21
22
23
24
25
26
27

F.3d at 567-68.
In Plaintiff’s initial complaint, he failed to explain why he believed his filing a
lawsuit against Correctional Officer Cacciola and his filing of grievances and staff
complaints created a retaliatory mindset. Plaintiff again fails to draw a connection
between his filing of the lawsuit, grievances, and staff complaints and Defendants’
alleged adverse actions against him of searching his cell and transferring his housing
unit. Plaintiff’s speculation that Defendants’ conduct was motivated by his filing of
grievances and complaints is insufficient. As Plaintiff was previously advised, mere

28
6

1
2
3
4
5
6
7

proximity in time between Plaintiff’s filing of the grievances and the alleged adverse
actions also does not alone suggest Defendants’ retaliatory mindset. See Bruce v. Ylst,
351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable issue of
fact regarding prison officials’ retaliatory motives by raising issues of suspect timing in
addition to other evidence, including statements). And, while Plaintiff believes the
actions did not advance legitimate correctional goals, he fails to plead facts to support
his belief.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Plaintiff alleges Defendant Curliss retaliated against him by threatening to come in
his cell and harm him if he continued “pushing paperwork.” (ECF No. 10 at 11.)
However, Plaintiff fails to allege that Defendant Curliss did in fact take any adverse
action against him or follow through with his threat. Plaintiff also fails to show how any
adverse action by Defendant Curliss chilled the exercise of his First Amendment rights
and “did not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at
568.
If Plaintiff seeks to allege Defendant Ramirez's use of force was excessive and
motivated by a retaliatory mind set, he must plead facts reflecting that filing the lawsuit
against Cacciola was protected conduct and motivated Ramirez's actions and that
Ramirez's conduct chilled Plaintiff's exercise of his First Amendment rights. Plaintiff will
be granted one more opportunity to amend his retaliation claim but only against
Defendant Ramirez for his use of excessive force. Plaintiff was advised of the other
deficiencies in the Court’s prior screening order. (ECF No. 9.) His failure to correct the
deficiencies is reasonably construed as reflecting his inability to do so. Leave to amend
against all other Defendants would be futile and is denied.
C.

Linkage

Under Section 1983, Plaintiff must demonstrate that each Defendant personally
participated in the deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934
(9th Cir. 2002). In other words, there must be an actual connection or link between the

28
7

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

actions of Defendants and the deprivation alleged to have been suffered by Plaintiff.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 695 (1978).
It is unclear from Plaintiff’s allegations whether Defendant Morgan personally
searched Plaintiff’s cell or merely provided Plaintiff with a cell search slip. Regardless,
Plaintiff has not stated a claim against Defendants for retaliation based on cell searches
and leave to amend that claim is denied.
D.

Due Process

The Due Process Clause protects Plaintiff against the deprivation of liberty
without the procedural protections to which he is entitled under the law. Wilkinson v.
Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the interest
at stake. Id. Liberty interests may arise from the Due Process Clause or from state law.
Id. The Due Process Clause itself does not confer on inmates a liberty interest in
avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation
marks omitted), and under state law, the existence of a liberty interest created by prison
regulations is determined by focusing on the nature of the condition of confinement at
issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84 (1995)). Liberty
interests created by prison regulations are generally limited to freedom from restraint
which imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life. Id.; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
When a prisoner faces disciplinary charges, prison officials must provide the
prisoner with (1) a written statement at least twenty-four hours before the disciplinary
hearing that includes the charges, a description of the evidence against the prisoner,
and an explanation for the disciplinary action taken; (2) an opportunity to present
documentary evidence and call witnesses, unless calling witnesses would interfere with
institutional security; and (3) legal assistance where the charges are complex or the
inmate is illiterate. See Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974).
Plaintiff alleges that Defendants Riley and Coontz violated the second

28
8

1
2
3
4
5
6

requirement by not allowing him to give a written statement or present his cellmate as a
witness. Plaintiff’s right to call witnesses at a disciplinary hearing is not absolute. Wolff,
418 U.S. at 566. Plaintiff fails to allege that there was no other legitimate correctional
goal or institutional security issue that would merit the denial of his cellmate as a
witness. Additionally, Plaintiff was given an opportunity to attend the hearing and raise
objections to the above, but he declined to do so.

7
8
9

Plaintiff will be given one last opportunity to amend. If Plaintiff chooses to
amend, he must allege facts demonstrating that there was no legitimate penalogical
reason for denial of his right to call witnesses.

10

E.

11
12
13
14
15
16

Supervisory Liability

Government officials may not be held liable for the actions of their subordinates
under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691, 691 (1978). Since a government official cannot be held liable under a theory of
vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the
official has violated the Constitution through his own individual actions by linking each
named Defendant with some affirmative act or omission that demonstrates a violation of

17

Plaintiff's federal rights. Iqbal, 556 U.S. at 676. Liability may be imposed on supervisory

18

defendants under § 1983 only if the supervisor: (1) personally participated in the

19

deprivation of constitutional rights or directed the violations or (2) knew of the violations

20

and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);

21

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Defendants cannot be held liable for

22

being generally deficient in their supervisory duties.

23

Plaintiff alleges that Defendant Allen reviewed the false disciplinary finding report

24

and Defendant Gutierrez finalized it. However, Plaintiff fails to allege how either of these

25

acts constituted a violation of his constitutional rights. Plaintiff does not allege that either

26

Defendant knew of Defendants Riley and Coontz’s violations and failed to act to prevent

27

them.

28
9

1
2
3

Plaintiff will be given one last opportunity to amend. If Plaintiff chooses to
amend, he must provide factual detail demonstrating what Defendants did or did not do,
when, why, and how his rights were violated by their personal conduct.

4

F.

5
6
7
8
9
10

Section 52.1 provides for redress against an individual who interferes with or
attempts to interfere with another person’s exercise or enjoyment of rights secured by
the United States Constitution or the California Constitution.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

A claim under § 52.1

requires that the interference or attempted interference with the right be by way of
threats, intimidation, or coercion. Cal. Civ. Code § 52.1; Venegas v. County of Los
Angeles, 32 Cal.4th 820, 843 (Cal. 2004).

11
12

State Claim

Plaintiff has not alleged Defendant Curliss attempted or completed an act of
interference with a legal right for the reasons stated above. Additionally, Plaintiff was
previously advised that the statement Defendant Curliss made was not on its face a
threat of violence or intimidation. Accordingly, Plaintiff’s § 52.1 claim again fails. Given
Plaintiff’s advisement of these deficiencies and failure to correct them, leave to amend
this claim would be futile and is denied.
V.

CONCLUSION AND ORDER
Plaintiff’s complaint states a cognizable Eighth Amendment excessive force claim

against Defendant Ramirez. It does not state a claim against any other defendant.
The Court will grant Plaintiff one last chance to amend to cure those deficiencies
which Plaintiff believes, in good faith, are curable. Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff
amends, he may not change the nature of this suit by adding new, unrelated claims in
his amended complaint.

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

“buckshot” complaint).
If Plaintiff does not wish to file an amended complaint and he is agreeable to
proceeding only on the claim found to be cognizable, he may file a notice informing the

28
10

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Court that he does not intend to amend, and he is willing to proceed only on his
cognizable claim.

provide Plaintiff with the requisite forms to complete and return so that service of process
may be initiated.
If Plaintiff files an amended complaint, it should be brief, but it must state what
each named defendant did that led to the deprivation of Plaintiff’s constitutional rights.
Fed. R. Civ. P. 8(a); Iqbal, 556 U.S. at 676-77. Although accepted as true, the “[f]actual
allegations must be [sufficient] to raise a right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555 (citations omitted).
Finally, an “amended complaint supersedes the [prior]” complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967). It must be “complete in itself without reference to
the prior or superseded pleading.” Local Rule 220.
Accordingly, it is HEREBY ORDERED that:
1. Within thirty (30) days from the service of this order, Plaintiff must either:

15

a. File an amended complaint curing the deficiencies identified by the

16

Court in this order, or

17

b. Notify the Court in writing that he does not wish to file an amended

18

complaint and that he is willing to proceed only on the claims found to

19
20

The other defendants then will be dismissed, and the Court will

be cognizable in this order;
2. If Plaintiff fails to comply with this order, the Court will recommend that this

21

action be dismissed, without prejudice, for failure to obey a court order.

22
23

IT IS SO ORDERED.

24
25

Dated:

January 13, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
26
27
28
11