Daniel Gomez v. Stainer et al

Filing 16

ORDER Dismissing Complaint 1 , signed by Chief Judge Ralph R. Beistline on 4/24/15. CASE CLOSED. (Gonzalez, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DANIEL GOMEZ,
Case No. 1:14-cv-00890-RRB
Plaintiff,
ORDER DISMISSING COMPLAINT
vs.
M. D. STAINER, Director, California
Department of Corrections, et al.,
Defendants.

Daniel Gomez, a California state prisoner appearing pro se and in forma pauperis,
brings this civil rights action under 42 U.S.C. § 1942 against various officials of the
California Department of Corrections and Rehabilitation (“CDCR).1 Gomez is incarcerated
at the California State Prison, Corcoran, California (“CSP-Corcoran”), where the acts
complained of occurred.
I.

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

against a governmental entity or officer or employee of a governmental entity.2 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

1

In addition to M. D. Stainer, CDCR Director, Gomez names as defendants: Connie
Gibson, Corcoran State Prison Warden; Correctional Lieutenant A. J. Thonson; Correctional
Lieutenant C. Munoz; Correctional Sergeant S. Sztukowsky; Correctional Sergeant A. Peterson;
Correctional Officer R. Burnitzki; Correctional Officer J. Hensley; Correctional Officer Gallardo;
Chief Medical Officer Teresa Macias, M.D.; LVN M. Somawang; two Jhon (sic) Does (transportation
officers); and Jane Doe.
2

28 U.S.C. § 1915A(a).

“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”3 Likewise,
a prisoner must exhaust all administrative remedies as may be available,4 irrespective of
whether those administrative remedies provide for monetary relief.5
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”6 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”7 Failure to state a claim under § 1915A incorporates the familiar standard
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.8

3

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d 1122,
1126 & n.7 (9th Cir. 2000) (en banc).
4

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to administrative
procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion of administrative
remedies must be completed before filing suit).
5

See Booth, 532 U.S. at 734.

6

Fed. R. Civ. P. 8(a)(2).

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 554, 555 (2007)).
8

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

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This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.9 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”10 Further, although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.11
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”12
II.

GRAVAMEN OF COMPLAINT
Gomez was transported by bus to CSP-Corcoran to serve a term in the Special

Housing Unit. Upon his arrival at CSP-Corcoran, Gomez exited the bus where he was
received by Burnitzki, Hensley and Sztukowsky. During the transfer from Gomez’s custody
by transportation to custody by CSP-Corcoran, Burnitzki threw Gomez face-first against the
wire fence. Burnitzski then threw Gomez to the floor, Gallardo jumped in and held
Gomez’s legs. Hensley held Gomez’s upper body while Burnitzski and Gallardo assaulted
him. According to Gomez he suffered a laceration to his face from which he was actively
bleeding, numerous bruises and abrasions to his shoulders, arms, legs, and back, and was
in severe pain.

9

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
2009) (quoting and applying Iqbal and Twombly).
10

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

11

Id.

12

Id. (quoting Twombly, 550 U.S. at 555).

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After the incident, Gomez was examined by LVN Somawang. Gomez alleges that
Somalong refused to treat his injuries and refused to record Gomez’s statement
concerning the alleged attack. Gomez also alleges that Somawang, Jhonson, and a Jhon
Doe refused to take or have taken pictures of Gomez’s injuries. Gomez was treated the
following day for his injuries.
In addition to an excessive use of force claim against Burnitzki, Hensley, and
Gallardo, Gomez alleges a failure to protect claim against Sztukowsky and the Jhon Does.
Gomez contends that Gibson’s failure to take corrective disciplinary action against Burnitzki
and Gallardo was the proximate cause of his injuries.
Gomez further alleges that, although he filed staff complaints, they were never
processed.13 Instead, Gomez was charged with and found guilty of staff assault in a Rules
Violation Report (“RVR”).14
As and for relief Gomez seeks: (1) damages from Burnitzki, Hensley, and Gallardo
for assault and battery and violation of the Eighth Amendment (excessive force); (2)
damages from Hensley, Sztukowsky, and the Jhon Doe Defendants for failure to protect;
(3) damages from Warden Gibson for failure to disciplinary or other appropriate action to
prevent the physicial abuse; (4) the failure of Dr. Macias, Somawang, and Jane Doe to
provide appropriate and necessary medical treatment constituted deliberate indifference

13

The exhibits attached to the Complaint show that, contrary to Gomez’s allegation, the
staff complaint was processed, albeit with a result contrary to that sought by Gomez. Complaint,
Docket 1, pp. 19–22.
14

Docket 1, pp. 42–43.

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and negligence under California law; (5) order that Gomez be released from the SHU to
the general prison population; and (6) the disciplinary action be expunged.
III.

DISCUSSION
Initially the Court notes that M. D. Stainer, CDCR Director, and Warden Connie

Gibson are sued solely in their official, not their individual, capacities. Although Gomez has
sued Chief Medical Officer Macias in her individual capacity, nothing in the body of the
Complaint or the voluminous attached exhibits indicates that either the Director, Warden,
or Dr. Macias participated in the alleged deprivation of Gomez’s rights. Section 1983 suits
do not support vicarious liability, a plaintiff must demonstrate that each defendant
personally participated in the deprivation of his or her rights.15
To the extent Gomez sues Stainer and Gibson in their official capacities it fails. The
Supreme Court has held that “states or governmental entities that are considered ‘arms
of the State’ for Eleventh Amendment” are not “persons” under § 1983.16 The Supreme
Court also clarified that “a suit against a state official in his or her official capacity . . . . is
no different from a suit against the state itself.”17

15

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); OSU Student Alliance v. Ray, 699 F.3d
1053, 1069 (9th Cir. 2012); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); see Monell v.
Dep’t of Soc. Svcs., 436 U.S. 658, 691–95 (1978) (rejecting the concept of respondeat superior in
the context of § 1983, instead requiring individual liability for the violation); Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989) (“Liability under [§] 1983 arises only upon a showing of personal
participation by the defendant. A supervisor is only liable for the constitutional violations of . . .
subordinates if the supervisor participated in or directed the violations, or knew of the violations and
failed to act to prevent them.” (Citations omitted)).
16

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989).

17

Id. at 71.

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To impose liability on a supervisor, the supervisor’s wrongful conduct must be
sufficiently causally connected to the constitutional violation.18 That is, the official must
“implement a policy so deficient that the policy itself is a repudiation of constitutional rights
and is the moving force of the constitutional violation.”19
A person deprives another “of a constitutional right, within the
meaning of section 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which [the plaintiff complains].”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (Johnson) (emphasis
added). The inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional deprivation. [Citations
omitted.]20
Gomez’s Complaint, including the attached exhibits, does not allege sufficient facts
to support either vicarious or supervisor’s liability. Accordingly, the Complaint as against
Stainer, Gibson, and Macias must be dismissed.
With respect to Gomez’s medical deliberate indifference claim, that too fails to state
a claim upon which this Court may grant relief. The Medical Report completed by LVN
Somawang notes that the examination of Gomez showed abrasions/scratches above his
left eye and in the area of both knees.21 An examination the following day did not note the
need for any treatment other than a mild pain reliever.22

18

See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc)
(abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)).
19

Id. (internal quotation marks and citations omitted).

20

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoted with approval in Tennison v.
City and County of San Francisco., 570 F.3d 1078, 1096 (9th Cir. 2009)).
21

Docket 1, p. 111.

22

Docket 1, pp. 113–16.

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“Deliberate indifference is a high legal standard. A showing of medical malpractice
or negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”23 A mere difference of medical opinion regarding the course of medical
treatment is “insufficient as a matter of law, to establish deliberate indifference.”24 While
Gomez may disagree with the treatment received from Somawang and Jane Doe as being
adequate, nothing in the record provided by Gomez, other than his own opinion, even
remotely supports his medical deliberate indifference claim.

Thus, it too must be

dismissed.
To the extent that Gomez seeks an order directing he be released from the SHU,
it fails to raise a claim cognizable under § 1983. Initially, in order to do so the Court would
have to find the challenged disciplinary action invalid. This, as explained further below, the
Court cannot do. In order to state a cause of action for violation of procedural due process,
a prisoner must first establish the existence of a liberty interest within the scope of the
protection of the Fourteenth Amendment.25 Liberty interests may arise from the Dues
Process Clause itself, or state law.26 The Due Process Clause, standing alone, does not
confer a liberty interest in prisoners being confined in the general prison population instead
23

Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v. Morgan, 296 F.3d
732, 744 (9th Cir. 2002); see Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (stating
that even gross negligence is insufficient to establish a constitutional violation); Broughton v. Cutter
Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam) (noting mere indifference, medical
malpractice, or negligence do not support a cause of action under the Eighth Amendment).
24

Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981)
(noting, also, that a disagreement between a prisoner and a medical professional over the most
appropriate course of treatment cannot give rise to a viable claim of deliberate indifference).
25

Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

26

See Hewitt v. Helms, 459 U.S. 460, 466–68 (1983).

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of administrative segregation.27 Furthermore, the record indicates that Gomez received all
the process to which he was due.28 Therefore, Gomez’s due process claim must also be
dismissed.
This Court must also deny Gomez’s request that the disciplinary action be
expunged. The record provided indicates that as a result of the RVR proceeding Gomez
was assessed a loss of 90 days good time credit.29 Persons subject to state custody
generally “have two potential avenues to remedy violations of their federal constitutional
rights: a habeas petition under 28 U.S.C. § 2254, and a civil suit under 42 U.S.C. § 1983.”30
In Preiser, the Supreme Court addressed “the extent to which § 1983 is a permissible
alternative to the traditional remedy of habeas corpus,”31 and held that § 1983 implicitly
excludes from its coverage claims that lie “within the core of habeas corpus.”32 Thus, a
person who is in state custody may not use § 1983 to challenge “the very fact or duration
of . . . confinement” by seeking “a determination that he is entitled to immediate release or

27

Id.

28

See Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (notice and opportunity to be heard
are adequate procedural safeguards for placement in maximum custody); Bruce v. Ylst, 351 F.3d
1283, 1287–88 (9th Cir.2003) (prison officials must provide an inmate with notice of the charges
and an opportunity to present his views, and decision must be supported by “some evidence” with
sufficient indicia of reliability).
29

Docket 1, p. 30; Cal. Code Reg. §§ 3005(d)(1), 3323(f)(11).

30

Osborne v. Dist. Attorney's Office, 423 F.3d 1050, 1053 (9th Cir.2005) (citing Heck v.
Humphrey, 512 U.S. 477, 480 (1994)).
31

Prieser v. Rodriguez, 411 U.S. 475, 500 (1973).

32

Id. at 487–88.

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a speedier release from that imprisonment”—for example, an injunction requiring prison
officials to grant good-time credits that would shorten his prison term.33
One of the preconditions to bringing a federal habeas petition is that this Court may
not consider claims that have not been fairly presented to the state courts.34 Unexhausted
claims must be dismissed.35 Exhaustion of state remedies requires the petitioner to fairly
present federal claims to the state courts in order to give the state the opportunity to pass
upon and correct alleged violations of its prisoners’ federal rights.36 Gomez has failed to
fully exhaust his state court remedies by presenting his claim to the highest state court,37
the California Supreme Court.
Because Gomez is proceeding pro se and this Court must liberally construe pro se
pleadings,38 normally this Court would simply dismiss with leave to amend providing Gomez
the opportunity to cure the defect, i.e., refile as a petition for habeas relief. In this case,
however, it is obvious from the Complaint that Gomez has not sought relief in any form in
the California courts. Thus, as a petition for federal habeas relief, because he has not

33

Id. at 499–500; see Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002) (“it has been
clear for over thirty years that a state prisoner seeking injunctive relief against the denial or
revocation of good-time credit must proceed in habeas corpus, and not under § 1983.”).
34

28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases).

35

See Rhines v. Weber, 544 U.S. 269, 275-78 (2005); Engle v. Issac, 456 U.S. 107, 125
n.28 (1982); Rose v. Lundy, 455 U.S. 509, 510 (1982).
36

Duncan v. Henry, 513 U.S. 364, 365 (1995).

37

See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir.2003) (citing Picard v.
Connor, 404 U.S. 270, 275 (1971) and O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
38

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620 F.3d 952,
958 (9th Cir. 2010).
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exhausted any of his claims in the state courts, it is premature and must be dismissed.39
Dismissal will, however, be without prejudice to Gomez filing a petition for federal habeas
relief under § 2254 or 2241, as appropriate.
Although Gomez names Correctional Sergeant A. Peterson as a defendant, nothing
in the body of the Complaint alleges any act or action by Sgt. Peterson that in some way
violated Gomez’s rights. A review of the exhibits attached to the Complaint indicates that
Sgt. Peterson was the reviewing custody supervisor with respect to the investigation into
the RVR. Not only is the Complaint devoid of any allegations implicating Peterson, other
than in connection with processing of the RVR, nothing in attachments to the Complaint
involves him in any way. For the same reason that review of the rules violation conviction
is beyond the purview of this Court in a § 1983 action, so too is any claim against Peterson.
Accordingly, it also must be dismissed.
The claim against Hensley, Burnitzski, and Gallardo stands on a somewhat different
footing. It has long been well-established that the wanton and unnecessary use of physical
force resulting in the infliction of pain constitutes cruel and unusual punishment under the
Eighth Amendment.40 Whenever prison officials stand accused of using excessive physical
force in violation of cruel and unusual punishment clause, core of judicial inquiry is whether
force was applied in good-faith effort to maintain or restore discipline, or maliciously and

39

As a habeas petition it would consist of solely unexhausted claims, not both exhausted
and unexhausted claims. Thus, the stay and abey procedure under which the court dismisses the
unexhausted claims and holds the exhausted claims in abeyance pending exhaustion is
inapplicable. See Rose, 455 U.S. at 522; Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing Rose).
40

See Whitley v. Albers, 475 U.S. 312, 319–21 (1986).

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sadistically to cause harm.41 While the extent of the injury suffered by an inmate is one of
the factors to be considered in determining whether the use of force was wanton and
unnecessary in violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment; absence of a serious injury does not necessarily end the inquiry.42 As stated
by the Ninth Circuit.
We have previously identified five factors set forth in Hudson to be
considered in determining how the above question should be answered;
namely, “(1) the extent of injury suffered by an inmate; (2) the need for
application of force; (3) the relationship between that need and the amount
of force used; (4) the threat reasonably perceived by the responsible officials;
and (5) any efforts made to temper the severity of a forceful response.”43
This claim suffers from the same infirmity as does his request that the disciplinary
action be expunged. The disciplinary action found to be true that: Gomez refused to obey
a lawful order, acted belligerently in response to that order, and attempted to head-butt
Burnitzski. Under those facts, no properly instructed, reasonable jury applying the Hudson
factors could find in favor of Gomez, i.e, that the force was not applied in a good faith effort
to maintain discipline, or was applied maliciously and sadistically to cause Gomez harm.
In order to find in favor of Gomez this Court would be required to at least implicitly
invalidate the disciplinary action taken against Gomez. As noted above, this the Court may
not do in an action brought under § 1983. Accordingly, this claim must also be dismissed
without prejudice to seeking habeas relief.

41

Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley, 475 U.S. at 320–21).

42

Id. at 7–8.

43

Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013) (quoting Martinez v. Stanford,
323 F.3d 1178, 1184 (9th Cir. 2003)).
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For the same reason that the claims against Hensley, Burnitzski, and Gallardo must
be dismissed, the failure to protect claims against Sztukowsky and the Jhon Doe
defendants must also be dismissed.
IV.

CONCLUSION/ORDER
Although normally this Court would grant leave to amend,44 it is obvious that Gomez

cannot truthfully allege that he has properly exhausted the prerequisite remedies in the
California state courts. Accordingly, the Complaint on file herein is hereby DISMISSED in
its entirety without prejudice to seeking appropriate relief in the California state courts.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims, or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.45 Therefore, Plaintiff's in
forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED this 24th day of April, 2015
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

44

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th Cir.
2013) (“A district court may deny leave to amend when amendment would be futile.”); Lopez v.
Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave to amend should
be given unless amendment would be futile).
45

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.
2002) (revocation of in forma pauperis status is appropriate if the appeal is frivolous).
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