Trujillo v. Biter

Filing 89

FINDINGS and RECOMMENDATIONS to Dismiss Claims Consistent with Magistrate Judge's Prior Order in Light of Williams Decision; Objections, if any, Due within Fourteen (14) Days signed by Magistrate Judge Erica P. Grosjean on 12/26/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/12/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CRUZ TRUJILLO,

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Plaintiff,

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v.

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GOMEZ, et al.,

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Defendants.

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Case No. 1:14-cv-01370-LJO-EPG (PC)
FINDINGS AND RECOMMENDATIONS
TO DISMISS CLAIMS CONSISTENT
WITH MAGISTRATE JUDGE’S PRIOR
ORDER IN LIGHT OF WILLIAMS
DECISION
(ECF NOS. 17 & 19)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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Guillermo Trujillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff consented to

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magistrate judge jurisdiction. (ECF No. 5). Defendants declined to consent to magistrate judge

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jurisdiction. (ECF No. 46).

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The Court previously screened Plaintiff’s complaint before Defendants appeared. (ECF

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No. 19). The Court found that Plaintiff stated cognizable claims against Gomez, Juarez, and

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Fernandez for excessive force in violation of the Eighth Amendment, and dismissed all other

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claims and defendants. (Id.).

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As described below, in light of Ninth Circuit authority, this Court is recommending that

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the assigned district judge dismiss claims and defendants consistent with the order by the

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magistrate judge at the screening stage.

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I.

WILLIAMS v. KING

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On November 9, 2017, the United States Court of Appeals for the Ninth Circuit held

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that a magistrate judge lacked jurisdiction to dismiss a prisoner’s case for failure to state a

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claim at the screening stage where the Plaintiff had consented to magistrate judge jurisdiction

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and defendants had not yet been served. Williams v. King, 875 F.3d 500 (9th Cir. 2017).
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Specifically, the Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent of all

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plaintiffs and defendants named in the complaint—irrespective of service of process—before

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jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court

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would otherwise hear.” Id. at 501.

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Here, the defendants were not served at the time the Court issued its order dismissing

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claims and defendants, and therefore had not appeared or consented to magistrate judge

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jurisdiction.

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defendants based solely on Plaintiff’s consent.

Accordingly, the magistrate judge lacked jurisdiction to dismiss claims and

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In light of the holding in Williams, this Court will recommend to the assigned district

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judge that he dismiss the claims and defendants previously dismissed by this Court, for the

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reasons provided in the Court’s screening order.

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II.

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).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may

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also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that the action or appeal fails to state a claim upon which relief may be granted.”

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28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
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(quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts

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“are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

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677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a

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plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

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Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that

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pro se complaints should continue to be liberally construed after Iqbal).

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III.

SUMMARY OF THIRD AMENDED COMPLAINT

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Plaintiff’s Third Amended Complaint (“TAC”) alleges that on December 23, 2013,

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Plaintiff was confined at Kern Valley State Prison (“KVSP”) when prison officials started

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harassing and fomenting rumors of “getting” Plaintiff, and targeting him because Plaintiff had

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filed 602 grievances, which were never logged and were returned to Plaintiff.

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On January 1, 2014, Plaintiff personally contacted Defendant M. Biter, warden of

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KVSP, and asked him to stop his coworkers from constantly verbally harassing Plaintiff and

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fomenting rumors and violence against him.

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On October 22, 2014, Plaintiff went to school and told Officer Gomez that Plaintiff

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needed to get his legal copies of a motion to file with the courts. On Plaintiff’s way back to the

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building from class due to not feeling well, Plaintiff stopped at the law library for legal copies.

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On the way back from the law library, Officer Gomez approached Plaintiff from behind and

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asked if Plaintiff was going to school. Plaintiff responded no. Officer Gomez became very

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upset and slammed Plaintiff against the concrete wall next to the library outside window, face-

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first, and twisted his arms to place them in restraints. Plaintiff felt pain on the left side of his

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face and his shoulders.

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Officer Gomez told Plaintiff to go to the facility program holding cell area for a strip

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search. Plaintiff complied. After the search and still naked inside the holding cage, Officers

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Juarez and Fernandez took out their pepper spray and sprayed Plaintiff for 4 to 5 seconds.

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Plaintiff believes the officers used force out of retaliation and harassment.
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Defendant Biter failed to correct and remand his coworkers for their excessive force.
Defendant Biter refused to reprimand officials’ actions when Plaintiff filed his complaints.

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Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights.

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Plaintiff’s Third Amended Complaint only named Defendant Biter in the list of

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defendants. At times, when Plaintiff discusses Officer Gomez, he refers to him as “Defendant

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Gomez.” Plaintiff never indicates in his complaint that Sergeant Juarez or Fernandez were

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meant to be included as defendants.1

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EVALUATION OF PLAINTIFF’S THIRD AMENDED COMPLAINT

IV.

The Civil Rights Act under which this action was filed provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
“[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

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393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman
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v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697
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F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012);
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Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted
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under color of state law, and (2) the defendant deprived him of rights secured by the
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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
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2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing
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“under color of state law”). A person deprives another of a constitutional right, “within the
meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or

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Plaintiff later clarified that Gomez, Juarez, and Fernandez were meant to be included as defendants.
(ECF No. 20).
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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

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Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite

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causal connection may be established when an official sets in motion a ‘series of acts by others

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which the actor knows or reasonably should know would cause others to inflict’ constitutional

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harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of

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causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”

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Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City

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of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

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1. EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH AMENDMENT

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The Eighth Amendment prohibits those who operate our prisons from using “excessive

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physical force against inmates.” Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray,

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682 F.2d 1237, 1246, 1250 (9th Cir. 1982) (prison officials have “a duty to take reasonable

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steps to protect inmates from physical abuse”); see also Vaughan v. Ricketts, 859 F.2d 736, 741

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(9th Cir. 1988), cert. denied, 490 U.S. 1012 (1989) (“prison administrators' indifference to

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brutal behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim”).

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As courts have succinctly observed, “[p]ersons are sent to prison as punishment, not for

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punishment.” Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted),

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aff'd, 973 F.2d 686 (8th Cir. 1992). “Being violently assaulted in prison is simply not ‘part of

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the penalty that criminal offenders pay for their offenses against society.’ ” Farmer, 511 U.S. at

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834, 114 S.Ct. at 1977 (quoting Rhodes, 452 U.S. at 347).

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Plaintiff’s Third Amended Complaint states a claim against Officers Gomez, Juarez,

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and Fernandez for excessive force in violation of the Eighth Amendment. Taking Plaintiff’s

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allegations as true and liberally construing them in Plaintiff’s favor, Plaintiff alleges that

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Gomez, Juarez, and Fernandez used unprovoked force against Plaintiff when Gomez slammed

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Plaintiff against the wall and twisted his arms, and then when Juarez and Fernandez sprayed

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Plaintiff with pepper spray.

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Plaintiff also alleges an Eighth Amendment excessive force claim against Defendant
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Biter, as warden, in his supervisory capacity for failing to prevent this excessive force. As was

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explained in the prior screening order in this case:

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[S]upervisory personnel may not be held liable under section 1983 for the
actions of subordinate employees based on respondeat superior or vicarious
liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord
Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074–75 (9th
Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915–16 (9th Cir. 2012) (en
banc). “A supervisor may be liable only if (1) he or she is personally involved in
the constitutional deprivation, or (2) there is a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.”
Crowley, 734 F.3d at 977 (internal quotation marks omitted); accord Lemire,
726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the latter theory,
supervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of a
constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885
F.2d 642, 646 (9th Cir.1989)) (internal quotation marks omitted).
(ECF No. 16, p. 3-4). There are no allegations in the TAC that Defendant Biter himself used
excessive force, or authorized or otherwise contributed directly to Gomez, Juarez and
Fernandez’s use of force. Additionally, there are no facts alleged that show (or would allow the
Court to draw the reasonable inference) that there was any causal connection between
Defendant Biter’s conduct and the alleged Eighth Amendment violation. Accordingly, Plaintiff
fails to state a claim for violation of the Eighth Amendment against Defendant Biter.
2. RETALIATION IN VIOLATION OF THE FIRST AMENDMENT
Allegations of retaliation against a prisoner's First Amendment rights to speech or to
petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090,
1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also
Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802,
807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation
entails five basic elements: (1) An assertion that a state actor took some adverse action against
an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled
the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

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2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104;

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

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Plaintiff repeatedly asserts that the officers assaulted him because he filed 602

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grievances. However, Plaintiff fails to set forth any specific factual allegations supporting this

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conclusion. He does not allege that the officers said anything to indicate that their assault was

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in retaliation for Plaintiff filing grievances, or that the assault happened closely in time to the

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602 grievances. In reviewing a complaint, the court must (1) accept as true all of the factual

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allegations contained in the complaint, unless they are clearly baseless or fanciful, (2) construe

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those allegations in the light most favorable to the plaintiff, and (3) resolve all doubts in the

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plaintiffs' favor. See Neitzke, 490 U.S. at 327; Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); Hebbe

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v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true legal

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conclusions cast in the form of factual allegations. See Western Mining Council v. Watt, 643

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F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.),

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as amended, 275 F.3d 1187 (2001).

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Because Plaintiff’s statements that these actions were done in retaliation are legal

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conclusions cast in the form of factual allegations, the Court need not accept them as true in

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determining whether Plaintiff states a claim for retaliation. Because there are no facts alleged

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that indicate that Defendants assaulted Plaintiff because Plaintiff engaged in protected conduct,

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the Court finds that Plaintiff fails to state a claim for retaliation in violation of the Eighth

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Amendment.

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3. LACK OF DUE PROCESS IN VIOLATION OF THE FOURTEENTH
AMENDMENT

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Prisoners have a right under the First and Fourteenth Amendments to litigate claims

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challenging their sentences or the conditions of their confinement without direct interference

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from prison officials. Lewis v. Casey, 518 U.S. 343, 350 (1996); Silva v. Di Vittorio, 658 F.3d

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1090, 1103 (9th Cir. 2011); Bounds v. Smith, 430 U.S. 817, 824–25 (1977). However, the
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right of access is merely the right to bring to court a grievance the inmate wishes to present,

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and is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518

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U.S. at 354. To claim a violation of this right, a plaintiff must show that he has suffered an

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actual injury as a result of the alleged interference. Christopher v. Harbury, 536 U.S. 403, 415

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(2002); Lewis, 518 U.S. at 351. In other words, he must be able to show that the deprivation

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has directly impacted the relevant litigation in a manner adverse to him. Id. at 348 (defining

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“actual injury” as “actual prejudice with respect to contemplated or existing litigation, such as

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the inability to meet a filing deadline or to present a claim”).

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Defendants’ actions in responding to Plaintiff's appeals, alone, cannot give rise to any

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claims for relief under section 1983 for violation of due process. “[A prison] grievance

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procedure is a procedural right only, it does not confer any substantive right upon the inmates.”

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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no

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liberty interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). “Hence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v.

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Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Plaintiff has alleged that his 602 grievances regarding the force incident and other

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harassment were not properly addressed by the prison. However, he does not allege that he was

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prejudiced in his ability to pursue litigation as a result.

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regarding the grievance procedure do not state a claim for violation of the constitution.

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V.

Therefore Plaintiff’s allegations

CONCLUSION AND RECOMMENDATIONS

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that all claims and

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defendants, except for Plaintiff’s claims against Officers Gomez, Juarez, and Fernandez for

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excessive force in violation of the Eighth Amendment, be DISMISSED.

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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these findings and recommendations, any party may file

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written objections with the court.

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Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be

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served and filed within seven (7) days after service of the objections. The parties are advised

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that failure to file objections within the specified time may result in the waiver of rights on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

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

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

December 26, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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