Sergio Tanori v. Biter et al

Filing 24

ORDER Requiring Plaintiff Either To File Amended Complaint Or To Notify Court Of Willingness To Proceed Only On Claims Identified Herein, Thirty-Day Deadline, signed by Magistrate Judge Stanley A. Boone on 11/4/2014. (First Amended Complaint or Notice to Proceed due by 12/8/2014) (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SERGIO M. TANORI,

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Plaintiff,

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v.

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M. BITER, et al.,

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Defendants.

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Case No.: 1:13-cv-01888-AWI-SAB (PC)
ORDER REQUIRING PLAINTIFF EITHER TO
FILE AMENDED COMPLAINT OR TO NOTIFY
COURT OF WILLINGNESS TO PROCEED ONLY
ON CLAIMS IDENTIFIED HEREIN
THIRTY-DAY DEADLINE

Plaintiff Sergio M. Tanori is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.

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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 “fail[] to state a claim on which relief may be granted,” or that “seek[]

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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)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 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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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is

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currently housed at the California Correctional Institution, Tehachapi. Plaintiff contends that, while he

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was housed at Kern Valley State Prison, Defendants H. Robles and S. Herrera used excessive force

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against him and Defendants M. Bitter, P. Vera, D. Goss, H. Tyson, R. Marta, and J. Arreola failed to

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protect him in violation of his Eighth Amendment rights. (Compl. 1-2, ECF No. 1.) Plaintiff further

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alleges that Defendants J. D. Lozano, R. Pementel, M. Seaman, B. Kunz, and J. I. Rodriguez made

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false statements about him to conceal the fact that Defendants Robles and Herrera used excessive

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force and interfered with his ability to exhaust his administrative remedies. (Id. at 2.) Defendants

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Biter, Vera, Gross, Tyson and Marta allowed Plaintiff to be subjected to a retaliatory transfer to

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another correctional institution to cover up that Defendants Robles and Herrera were not disciplined

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for the use of excessive force upon him. (Id.)

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Plaintiff alleges that on January 11, 2013 at approximately 7:28 a.m. Defendants Robles and

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Herrera were assigned to transport inmate Olivares to Bakersfield for court. (Id. at 4.) Plaintiff was

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confined in a cell with inmate Olivares and Defendant Robles placed Plaintiff in handcuffs behind his
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back and ordered him to the rear of the cell. (Id.) Defendant Robles then conducted an unclothed

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body search of inmate Olivares in the cell. (Id.) Defendant Robles then placed inmate Olivares in

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handcuffs and directed Defendant Arreola to open the cell door. (Id. at 5.)

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Plaintiff contends that Defendant Robles ordered inmate Olivares to back out of the cell and

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move to the left and inmate Olivares refused. (Id. at 6.) Defendant Robles then physically moved

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inmate Olivares to the left. (Id. at 7.) As the cell door was closing, Plaintiff heard Defendant Robles

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yell to Defendant Arreola to reopen the cell door. (Id. at 5.) Defendant Robles ran into the cell and

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attacked Plaintiff. (Id.) Plaintiff alleges that Defendant Robles picked Plaintiff up by the handcuffs

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and threw him to the cell floor and started punching and kicking Plaintiff. (Id.) Defendant Herrera

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assisted Plaintiff with the physical assault of Plaintiff. (Id.) Due to the alleged assault, Plaintiff

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sustained an abrasion, bruises, swelling, a serious head injury, and swelling to his head and face. (Id.)

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Plaintiff believes that Defendants Herrera and Robles have a long history of use of excessive force on

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inmates at Kern Valley State Prison. (Id. at 6.)

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Plaintiff states that Defendants Robles, Herrera, and Arreola should have left the cell door

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secured and notified the lieutenant if they suspected there was contraband in the cell. (Id. at 7.)

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Defendant Robles had just completed an unclothed body search of inmate Olivares and was aware that

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he did not possess contraband. (Id.) Plaintiff alleges that he was cooperating with Defendant Robles

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who lost self-control with inmate Olivares and ran back into the cell to assault Plaintiff. (Id.) Plaintiff

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contends that Defendants Robles and Herrera attempted to cover up their use of excessive force by

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falsely claiming that Plaintiff bit Defendant Herrera. (Id.) Defendant Herrera claimed to have

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sustained redness to his forearm as a result of being bitten by Plaintiff but they did not have DNA or

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other trace evidence taken. (Id. at 8.)

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Plaintiff contends Defendants Biter, Vera, Goss, Tyson, and Marta did not participate in the

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use of excessive force but failed to properly train Defendants Robles and Herrera in how to conduct a

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cell extraction and that resulted in the attack on Plaintiff. (Id.) Plaintiff contends that Defendant

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Arreola should have refused to open the cell door because inmate Olivares had already been removed

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from the cell. (Id. at 9.) Further, Plaintiff states that Defendants Robles and Herrera did not warn him

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that if he refused to comply with their directive physical force would be used on him to remove him

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from the cell. (Id.)
Plaintiff alleges that Defendants Biter, Vera, Goss, Tyson, and Marta have a long history of

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attempting to cover up correctional staff use of force and making false statements to conceal the use of

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excessive force. (Id. at 10.) Plaintiff contends that Defendants Biter, Vera, Goss, Tyson, Marta,

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Lozano, Pimentel, Seaman, Kunz, and Rodriguez were acting in their supervisory roles and failed to

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adequately investigate the use of force. (Id.) Further, Plaintiff claims that Defendants Biter, Vera,

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Tyson, Marta, Kunz, and Rodriguez conducted a botched investigation to cover up the use of force.

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(Id.)

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Plaintiff contends that prior to July 11, 2013, Defendants Biter, Vera, Goss, Tyson, Marta,

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Kunz, and Rodriguez knew or should have known that officers Cruse and Murphy were charged with a

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felony for challenging an inmate to a fight. (Id. at 11.) Plaintiff claims that Defendants Biter, Vera,

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Goss, Tyson, and Marta allowed Plaintiff to be subjected to a retaliatory transfer to conceal the

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wrongdoing on January 11, 2013. (Id.)

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On January 13, 2013, Plaintiff filed a letter and inmate appeal alleging he had been the victim

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of excessive force on January 11, 2013 to Special Agent Dunlop. (Id. at 12.) Plaintiff sent a follow-

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up letter on March 29, 2013 requesting the status of his appeal. (Id.) On April 27, 2013, Plaintiff

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submitted an inmate appeal to the appeals coordinator at Kern Valley State Prison asking that the

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appeal sent on January 13, 2013 be processed. (Id.)

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On May 2, 2013, Plaintiff received a response that there was no record of any appeal being

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submitted on or about January 31, 2013. (Id.) Plaintiff filed a second inmate appeal and was

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interviewed by Defendant Seaman on May 31, 2013. (Id. at 13.) Plaintiff received a response and

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filed an appeal that he was dissatisfied with the response because nothing was done to seriously

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investigate Plaintiff’s allegations regarding the use of force. (Id.) On July 11, 2013, Defendant

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Lozano sent Plaintiff a letter requesting that he remove his citizen complaint form. (Id.) Plaintiff

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removed the citizen’s complaint form and returned the appeal for third level review. (Id.)

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On September 10, 2013, Defendant Lozano and three other individuals came to conduct an
interview with Plaintiff regarding the incident. (Id.) Plaintiff states they were attempting to
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discourage or prevent him from reporting the use of force and his appeal was illegally cancelled on

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September 27, 2013, by Defendant Pimental. (Id.) On October 4, 2013, Defendant Seaman sent

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Defendant Biter, Kunz, and Rodriguez a memorandum regarding the incident. (Id. at 14.) Plaintiff

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alleges that the evidence clearly shows that Defendants Biter, Vera, Goss, Tyson, Marta, Lozano,

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Pimental, Seaman, Kunz, and Rodriguez have effectively prevented Plaintiff from timely using the

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available administrative remedies. (Id.)

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III.

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DISCUSSION

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A.

Excessive Force

The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners from

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the use of excessive physical force. Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (per curiam);

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Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995 (1992). What is necessary to show sufficient

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harm under the Eighth Amendment depends upon the claim at issue, with the objective component

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

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(quotation marks and citations omitted). For excessive force claims, the core judicial inquiry is

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

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and sadistically to cause harm. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7) (quotation

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marks omitted).

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Not every malevolent touch by a prison guard gives rise to a federal cause of action. Wilkins,

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559 U.S. at 37 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Necessarily excluded from

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constitutional recognition is the de minimis use of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind. Wilkins, 559 U.S. at 37-38 (quoting Hudson, 503

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U.S. at 9-10) (quotations marks omitted). In determining whether the use of force was wanton and

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unnecessary, courts may evaluate the extent of the prisoner’s injury, the need for application of force,

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

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

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503 U.S. at 7 (quotation marks and citations omitted).

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While the absence of a serious injury is relevant to the Eighth Amendment inquiry, it does not

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end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause harm always violates

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contemporary standards of decency. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9)

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(quotation marks omitted). Thus, it is the use of force rather than the resulting injury which ultimately

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counts. Wilkins, 559 U.S. at 37.
Based on Plaintiff’s allegations in the complaint he states a cognizable claim for excessive

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force against Defendants Robles and Herrera. However, Plaintiff does not state a cognizable claim for

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excessive force against Defendant Arreola. Plaintiff alleges only that Defendant Arreola should not

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have re-opened the cell door and should have notified a lieutenant is there was a suspicion that

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contraband was in his cell. Plaintiff’s allegations fail to give rise to a constitutional violation, as there

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is no reasonable basis to infer that Defendant Arreola was aware of either Defendant Robles or

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Herrera’s intent or had reason to suspect that force was going to be used upon Plaintiff. The mere act

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of opening the cell door for entry by Defendants Robles and Herrera does not provide a basis for

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liability under the Eighth Amendment. Accordingly, Plaintiff states a cognizable claim for excessive

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force against Defendants Robles and Herrera only.

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B.

Supervisory Liability

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Under section 1983, Plaintiff must prove that the defendants holding supervisory positions

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). There is no respondeat superior liability, and each defendant is only liable for his or her own

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misconduct. Iqbal, at 1948-49. A supervisor may be held liable for the constitutional violations of his

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or her subordinates only if he or she “participated in or directed the violations, or knew of the

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violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);

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

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Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.

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1997).

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Plaintiff contends that Here, Plaintiff has not alleged any facts showing personal involvement

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by any of the Defendants in a supervisor capacity. Further, Plaintiff’s vague allegation that

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Defendants Biter, Vera, Goss, Tyson, Marta, Lozano, Pimentel, Seaman, Kunz, and Rodriguez failed
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to properly train and/or supervise Defendants Robles and Herrera as to the proper cell extraction,

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amounts, at most, to respondeat superior liability, which fails to state a § 1983 claim. Further,

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Plaintiff’s claim that Defendants Biter, Vera, Tyson, Marta, Kunz, and Rodriguez conducted a

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“botched” investigation, does not give rise to a constitutional violation because an inadequate

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investigation alone does not “involve[] the deprivation of a protected right,” but must implicate

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“another recognized constitutional right.” Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985)

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(per curiam). Absent allegations that these Defendants’ actions or omissions implicated a

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constitutionally-protected right beyond Plaintiff’s right to due process, this claim fails.

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C.

Inmate Appeals Process

“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of

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life, liberty, or property; and those who seek to invoke its procedural protection must establish that one

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of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005).

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Plaintiff does not a have protected liberty interest in the processing his appeals, and therefore, he

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cannot pursue a claim for denial of due process with respect to the handling or resolution of his

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appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988)). Actions in reviewing prisoner’s administrative appeal cannot serve as the basis

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for liability under a section 1983 action. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

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Consequently, Plaintiff’s claim that Defendants Biter, Vera, Goss, Tyson, Marta, Lozano, Pimental,

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Seaman, Kunz, and Rodriguez prevented him from filing an administrative appeal, does not state an

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independent due process violation based on the denial and/or interference with his access to the prison

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grievance system.

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D.

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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

Conspiracy

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of

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those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312

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F.3d 423, 441 (9th Cir. 2001).

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Plaintiff contend that Defendants Biter, Vera, Lozano, Pimentel, Seaman, Kunz, and
Rodriguez conspired to violate his rights under the Eighth Amendment. Plaintiff fails to provide
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sufficient factual allegations to support the existence of a conspiracy. Instead, Plaintiff alleges only a

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mere conclusion that Defendants engaged in a conspiracy. Conclusory allegations of a conspiracy

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which are not supported by material facts are insufficient to state a claim. See Simmons v.

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Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Woodrum v. Woodward

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County, 866 F.2d 1121, 1126 (9th Cir. 1989). In order to allege a conspiracy, Plaintiff allege with

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particularity who made an agreement with whom, when the agreement was made, what the agreement

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was, and what the purpose of the agreement was. In addition, Plaintiff must identify the role of each

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individual in the alleged conspiracy. Accordingly, Plaintiff fails to state a cognizable conspiracy claim

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and leave to amend will be granted.

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E.

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Plaintiff contends Defendants Biter, Vera, Goss, Tyson, and Marta allowed Plaintiff to be

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Retaliatory Transfer to Different Prison

subjected to a retaliatory transfer to conceal the wrongdoing on January 11, 2013.
Prisoners have no constitutional right to incarceration in a particular institution. See Olim v.

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Wakinekona, 461 U.S. 238, 244-248 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976). A

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prisoner’s liberty interests are sufficiently extinguished by his conviction that the state may generally

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confine or transfer him to any of its institutions, to prisons in another state or to federal prisons,

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without offending the Constitution. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985)

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(intrastate prison transfer does not implicate Due Process Clause). “It is well settled that the decision

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where to house inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S.

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Even though a transfer is generally permissible, prison officials may not transfer a prisoner

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from one correctional institution to another in order to punish or retaliate against the prisoner for

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exercising his constitutional rights. See Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995);

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Rizzo v. Dawson, 778 F.2d at 532. “Within the prison context, a viable claim of First Amendment

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

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

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

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
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Plaintiff fails to allege that his transfer did not reasonably advance a legitimate correctional

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goal. Plaintiff merely alleges that Defendants Biter, Vera, Goss, Tyson, and Marta allowed Plaintiff to

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be transferred to a different prison to conceal wrongdoing which occurred on January 11, 2013.

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However, there is no indication that Defendants acted in excess of legitimate penological goals in his

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placement within his prison system or otherwise. Plaintiff has not satisfied the fifth element of a

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retaliation claim and Plaintiff fails to state a cognizable retaliation claim.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint states a cognizable claim against Defendants Robles and Herrera for

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excessive force in violation of the Eighth Amendment. Plaintiff has not sufficiently alleged facts for

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any other claims against any of the other named Defendants. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on

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the claim for excessive force against Defendants Robles and Herrera, Plaintiff may so notify the Court

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in writing, and the Court will issue a recommendation for dismissal of the other claims and

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Defendants, and will forward Plaintiff two (2) summons and two (2) USM-285 form for completion

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and return. Upon receipt of the forms, the Court will direct the United States Marshal to initiate

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service of process.

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If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). With

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respect to exhibits, while they are permissible if incorporated by reference, Fed. R. Civ. P. 10(c), they

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are not necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). In other words, it is
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not necessary at this stage to submit evidence to prove the allegations in Plaintiff’s complaint because

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at this stage Plaintiff’s factual allegations will be accepted as true.

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’” “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

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550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint. Finally, Plaintiff is advised that, should he choose to amend,

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he may not bring unrelated claims in the same action.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:
a.

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File an amended complaint curing the deficiencies identified by the Court in this
order, or

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b.

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

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and wishes to proceed only against Defendants Robles and Herrera for

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excessive force; and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.

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IT IS SO ORDERED.

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Dated:

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November 4, 2014
UNITED STATES MAGISTRATE JUDGE

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