Trujillo v. Munoz

Filing 34

FINDINGS and RECOMMENDATIONS recommending that this action be dismissed, with prejudice, for Plaintiff's failure to state a claim for which relief may be granted re 20 Amended Prisoner Civil Rights Complaint ; referred to Judge Ishii; ORDER DIRECTING Clerk of the Court to Assign a District Judge to this action; New Case Number is 1:14-cv-01215 AWI-SAB (PC), signed by Magistrate Judge Stanley A. Boone on 8/6/18. Objections to F&R due by 9/10/2018(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,
Plaintiff,

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v.
C/O MUNOZ, et al.,
Defendants.

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Case No.: 1:14-cv-01215-SAB (PC)
ORDER DIRECTING CLERK OF THE COURT TO
ASSIGN A DISTRICT JUDGE TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THIS SUIT
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF Nos. 20, 30, 33]

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I.

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BACKGROUND

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Plaintiff Guillermo Trujillo Cruz is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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Plaintiff initiated this action on August 4, 2014, by filing the initial complaint. (ECF No. 1.)

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January 14, 2015, the previously-assigned Magistrate Judge issued an order finding that Plaintiff had

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failed to state any cognizable claim, and granting Plaintiff leave to file an amended complaint to cure

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the described deficiencies. (ECF No. 10.)

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Plaintiff filed a first amended complaint on January 28, 2015. (ECF No. 11.) Plaintiff also filed

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several motions. (ECF Nos. 12, 14, 17.) On August 17, 2015, the matter was reassigned to the

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undersigned upon the retirement of the previously-assigned Magistrate Judge. (ECF No. 16.)
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On December 11, 2015, the Court issued an order again finding that Plaintiff had failed to state

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any cognizable claim, and granting leave to file an amended complaint. (ECF No. 19.) On January 12,

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2016, Plaintiff filed a second amended complaint. (ECF No. 20.)

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On May 17, 2016, the undersigned screened Plaintiff’s second amended complaint, found that

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he had failed to state any cognizable claim, and dismissed the action for the failure to state a claim upon

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which relief may be granted. (ECF No. 21.) Judgment was entered the same day. (ECF No. 22.)

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Plaintiff appealed. (ECF No. 23.)

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On February 27, 2018, the Ninth Circuit Court of Appeals vacated and remanded the action to

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this Court. (ECF No. 30.) Specifically, the Ninth Circuit found that because all the parties, including

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unserved defendants, had not consented to proceed before a United States Magistrate Judge, the

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dismissal order was vacated and the case was remanded for further proceedings pursuant to Williams v.

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King, 875 F.3d 500, 503-04 (9th Cir. 2017). (Id.) The Ninth Circuit’s mandate was issued on August

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3, 2018, ordering that the February 27, 2018 judgment takes effect as of that date. (ECF No. 33.)

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Now, for the reasons discussed below, the Court recommends that Plaintiff’s action be dismissed
for the failure to state a cognizable claim for relief.

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II.

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SCREENING REQUIREMENT

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim

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upon which relief may be granted.” 28 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 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, do

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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). The pleadings of pro se litigants are construed liberally and are afforded the

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benefit of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe v. Pliler, 627

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F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading standard . . . applies only to a plaintiff’s

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factual allegations,” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), and “a liberal interpretation of a
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civil rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns

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v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673

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F.2d 266, 268 (9th Cir. 1982)). Also, while a plaintiff’s allegations are taken as true, courts “are not

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required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted); Moss v. United

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States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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III.

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SECOND AMENDED COMPLAINT ALLEGATIONS

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Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) at Kern Valley State Prison, brings this civil rights action against Defendants Correctional

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Officer Munoz and Lieutenant Alvarez, employees of the CDCR at the Substance Abuse Treatment

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Facility at Corcoran (SATF), where the events at issue occurred.

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Plaintiff alleges that on September 9, 2013, he filed a grievance regarding Defendant Munoz, for

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making verbal threats. Later that week, Plaintiff was called to the Program Office for an interview

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regarding his grievance.

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disrespected him.

Plaintiff alleged that when he got to the Program Office, Lt. Alvarez

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On November 1, 2013, Defendant Munoz “unlawfully subjected Plaintiff Mr. Trujillo to be

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targeted as of assault with deadly weapon to wit (knife).” (ECF No. 20, at 4.) Plaintiff alleges that he

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was assaulted by another inmate, suffering injury as a result, because of Defendant Munoz’s verbal

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threats. Plaintiff further alleges that Lt. Alvarez “knew or should have known that when officers provoke

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or incite violence an inmate can easily be targeted to be assaulted if their’s [sic] some kind of reward

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given in return.” (Id. at 5.)

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IV.

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DISCUSSION

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A.

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The Eighth Amendment’s prohibition on cruel and unusual punishment protects prisoners not

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only from inhuman methods of punishment but also from inhumane conditions of confinement. Morgan

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v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). “[W[hile conditions of confinement may be, and

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often are, restrictive and harsh, they ‘must not involve the wanton and unnecessary infliction of pain,”

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Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “What is necessary to show sufficient

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harm for purposes of the Cruel and Unusual Punishments Clause depends on the claim at issue . . .”

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Eighth Amendment

Hudson v. McMillian, 503 U.S. 1, 8 (1992).

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For excessive force claims, the issue is “whether force was applied in a good faith effort to

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maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7.

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Although de minimis uses of force do not violate the Constitution, the malicious and sadistic use of

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force to cause harm always violates the Eighth Amendment, regardless of whether or not significant

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injury is evident.” Id. at 9-10. Plaintiff was specifically advised that, in order to state a claim for

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excessive force against Defendant Munoz, he must allege facts indicating that Defendant Munoz

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subjected him to excessive force. A conclusory allegation is insufficient to state a claim for relief under

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the Eighth Amendment. Plaintiff must allege facts indicating that Defendant Munoz subjected Plaintiff

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to physical force,

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Plaintiff alleges that Defendant Munoz subjected him to “verbal threats” as well as threatening

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to have Plaintiff “targeted.” Allegations of threats and harassment do not state a cognizable claim under

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42 U.S.C. § 1983. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (assaultive comments by

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prison guard not enough to implicate Eighth Amendment); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

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1987) (mere threat does not constitute constitutional wrong).

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The Ninth Circuit has dismissed claims alleging prison guards were deliberately indifferent to a

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prisoner’s safety in violation of the Eighth Amendment because the prisoner “did not allege that he had

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been assaulted or threatened by assault by other prisoners.” Williams v. Wood, 223 Fed. Appx. 670,

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671, 2007 WL 654223, *1 (9th Cir. 2007). The Ninth Circuit has also rejected an Eighth Amendment
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claim where guards labeled an inmate a “snitch” but the inmate had not been retaliated against. Morgan

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v. McDonald, 41 F.3d 1291, 1294 (9th Cir. 1994). In these cases the Ninth Circuit reasoned that

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“speculative and generalized fears of harm at the hands of other prisoners do not rise to a sufficiently

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substantial risk of serious harm.” Williams, 223 Fed. Appx. at 671. These cases do not stand for the

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proposition that injury is a necessary element of a failure to protect claim. Rather, in these cases, the

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plaintiffs failed to allege how a certain label resulted in a serious risk of harm and how that harm was

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known to the prison guard.

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Here, Plaintiff is relying on speculative and generalized fears of harm. While Plaintiff may have

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felt genuinely threatened, he has not alleged facts indicating that Defendant Munoz subjected him to a

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specific harm. Plaintiff alleges conclusory statements that he felt threatened, that he was assaulted by

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an inmate, and that officers should know that when officers provoke or incite violence, inmates can be

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targeted, especially if there is a reward, but he draws no factual connections between these generalized

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fears and speculation. Plaintiff has failed to state a claim for a violation of the Eighth Amendment.

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B.

Retaliation

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In the order dismissing the original complaint, Plaintiff was advised that allegations of retaliation

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against a prisoner’s First Amendment rights to speech or to petition the government may support a §

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1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez,

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866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison

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context, a viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that

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a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)

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the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d

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559, 567-68 (9th Cir. 2005); accord Watison v. Cartier, 668 F.3d 1108, 1114-15 (9th Cir. 2012);

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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Plaintiff’s allegations in his second amended complaint, as with his first amended complaint and

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original complaint, are vague and conclusory. Plaintiff set forth a generalized allegation that he was

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subjected to excessive force and retaliated against. Plaintiff was specifically advised that in order to

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state a claim under section 1983, he must link each defendant with conduct that deprived Plaintiff of a
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protected interest. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person

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deprives another of a constitutional right, where that person “does an affirmative act, participates in

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another’s affirmative acts, or omits to perform an act which [that person] is legally required to do that

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causes the deprivation of which complaint is made.” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir.

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2007)(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he requisite causal connection

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can be established not only by some kind of direct, personal participation in the deprivation, but also by

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setting in motion a series of acts by others which the actor knows or reasonably should know would

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cause others to inflict the constitutional injury.” Id. at 743-44.

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Here, Plaintiff contends that Defendant Munoz “targeted” Plaintiff in retaliation for filing an

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inmate grievance, but this bare assertion, supported by no factual allegations, does not state a claim for

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relief. Plaintiff must allege facts indicating that the named individual took adverse action against

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Plaintiff in retaliation for engaging in First Amendment activity. The conduct must chill the exercise of

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Plaintiff’s First Amendment rights. As with Plaintiff’s Eighth Amendment claim, the conclusory

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statement that Plaintiff was “targeted” does not state a claim.

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Plaintiff was previously directed to explain, in his own words, the facts of what happened.

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Plaintiff was specifically instructed to explain what each Defendant, by name, did to violate his rights.

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However, he has repeatedly failed to correct these deficiencies. Therefore, further leave to amend is not

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warranted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); see also Schmier v. U.S. Court of

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Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment”

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as a proper basis for dismissal without leave to amend).

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V.

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CONCLUSION AND RECOMMENDATION

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The Clerk of the Court is HEREBY DIRECTED to randomly assign a district judge to this action.

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Further, for the reasons explained above, IT IS HEREBY RECOMMENDED that this action be

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dismissed, with prejudice, for Plaintiff’s failure to state a claim for which relief may be granted.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with this Findings and Recommendation, Plaintiff may file written objections with the
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Court.

The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result

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in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing

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

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IT IS SO ORDERED.

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Dated:

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August 6, 2018
UNITED STATES MAGISTRATE JUDGE

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