Clark v. Brazelton et al

Filing 24

ORDER DISMISSING ACTION as Barred By The Statute of Limitations 23 , signed by Magistrate Judge Jennifer L. Thurston on 6/29/16: This action is DISMISSED with prejudice; and The Clerk of the Court is ordered to close this action. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRINT CLARK,

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Case No. 1:15-cv-00350-JLT (PC)
Plaintiff,

ORDER DISMISSING ACTION AS BARRED
BY THE STATUTE OF LIMITATIONS

v.
(Doc. 23)

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BRAZELTON, et al.,

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Defendants.

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Plaintiff alleges various causes of action against several prison staff at Pleasant Valley

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State Prison for improperly identifying him as a member of the Black Gorilla Family (“BGF”)

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gang when, in fact, he is a member of the Crips gang. (Doc. 23.) For the reasons discussed

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below, Plaintiff’s claims are barred by the statute of limitations and this action is DISMISSED

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with prejudice.

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A.

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The Court is required to screen complaints brought by prisoners seeking relief against a

Screening Requirement

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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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii).
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Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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B.

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Though he is now housed at California Correctional Institute, Plaintiff complains of acts

Second Amended Complaint

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that occurred while he was housed at Pleasant Valley State Prison at the hands of Defendants

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Warden, PD Brazelton, Lieutenants A. Shimmin and Duty, and Correctional Officer M. Seese.

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Plaintiff seeks monetary and declaratory relief.

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Plaintiff identifies the following three “Counts” in which he asserts multiple constitutional

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claims: (1) due process violation, discrimination based on race, and intentional infliction of

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emotional distress; (2) cruel and unusual punishment, failure to protect/safety, negligence; and (3)

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defamation and libel. Though there are other substantial defects in his pleading, as discussed

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below, Plaintiff’s claims are DISMISSED because they are barred by the statute of limitations.

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1. Summary of Allegations
Plaintiff alleges that, prior to and upon entering CDCR, he was recognized as a member of

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the Crips gang and CDCR classified him as a Crip. (Doc. 23, p. 8.) Plaintiff alleges that, on

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April 23, 2009, C/O Seese submitted a false and fraudulent 128-B chrono (based on a drawing of

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a gorilla found in Plaintiff cell) associating Plaintiff with the BGF. (Id.) Thereafter, C/O Seese

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used the drawing to inappropriately cell Plaintiff with BGF, who were his known enemies. (Id.)

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Prior to this, Plaintiff had only ever been housed with Crips as cellmates as they are a “rival

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faction to all other gang [sic] that are not Crips, espically [sic] BGF.” (Id.) C/O Seese is an ISU

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officer and as such, part of his duties include reviewing Plaintiff’s Central File (C-File) which
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contained documentation that labeled Plaintiff as a Crip. (Id.) On this basis, C/O Seese allegedly

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knew, or should have known the ramifications of the chrono he generated which changed

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Plaintiff’s status. (Id.)
When C/O Seese wrongly identified Plaintiff as a BGF, Plaintiff’s “bed card,” reflecting

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who he could be placed with, was changed which put his life in danger. (Id., p. 9.) Plaintiff

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alleges that, as a result of this wrong gang identification, he was sliced on the arm, stabbed in the

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torso, and had numerous other violent altercations with members of both the BGF and Crips.

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(Id.)

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In February 2010, Plaintiff was informed by the psychiatrist during an evaluation for his

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hearing with the Parole Board, that he was labeled both a BGF and a Crip. (Id., p. 9.)

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Subsequently, Plaintiff approached Lt. Duty as he was leaving the yard and questioned him about

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the false chrono generated by C/O Seese since he would have had to okay it. (Id.) Plaintiff

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informed Lt. Duty he was being treated badly by other inmates and that the false chrono had

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come up in his parole hearing. (Id.) Lt. Duty said he fully agreed with C/O Seese’s chrono and

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that there was nothing Plaintiff could do to change it. (Id., pp. 10-11.)

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Thereafter, Plaintiff wrote a letter to Warden Brazelton, explaining the situation. (Id., p.

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10.) An Associate Warden responded and told Plaintiff to use the inmate appeal (IA) process to

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raise the concern. Plaintiff filed IA number PVSP-S-12-02521. (Id.) On November 16, 2012,

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Plaintiff stated to the Institutional Classification Committee (ICC) that he was tired of the prison

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politics and wanted to transfer to a sensitive needs yard because he believed he was not safe and

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felt that CDCR could not protect him under his current living circumstances. (Id.) On November

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21, 2012, Plaintiff appeared before the Ad-Seg ICC and was placed “on the 128-G under gang -

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no gang status.” (Id.)
On March 19, 2013, Lt. Shimmin interviewed Plaintiff for the second level of his IA and

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conceded in writing that there was not enough proof to validate Plaintiff as a BGF member or

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associate and that, regardless of the accuracy of the allegations, Plaintiff should be housed

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immediately in Ad-Seg to await processing for placement in the secured housing unit (SHU).

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(Id.)
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On September 17, 2013, CDCR contacted Plaintiff and supplied him with “an expert in

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Black Gangs” who found that “Plaintiff is an early and/or foundational member of the Inland

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Empire Garden (IEG), currently using the Crips designation to represent the gang membership.”

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(Id.) On December 21, 2013, Plaintiff appeared before the “Security Threat Group Classification

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Committee” who validated Plaintiff as a “Crip-California Garden.” (Id.)

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C.

Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal4

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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It is under this rubric that Plaintiff’s allegations are evaluated.

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D.

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Federal law determines when a claim accrues, and “[u]nder federal law, a claim accrues

Statute of Limitations

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when the plaintiff knows or has reason to know of the injury which is the basis of the action.”

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Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th

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Cir. 1999). Because section 1983 contains no specific statute of limitation, federal courts should

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apply the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393

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F.3d 918, 927 (9th Cir. 2004); Maldonado, 370 F.3d at 954; Fink, 192 F.3d at 914. California’s

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statute of limitations for personal injury actions was extended to two years effective January 1,

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2003. Cal. Civ. Proc. Code § 335.1 (West 2007); Jones, 393 F.3d at 927; Maldonado, 370 F.3d at

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954-55.

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In actions where the federal court borrows the state statute of limitation, the court should

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also borrow all applicable provisions for tolling the limitations period found in state law. Jones,

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393 F.3d at 927. Under California law, prisoners who at the time the cause of action accrued

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were either imprisoned on a criminal charge or serving a sentence of less than life for a criminal

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conviction enjoy a two-year tolling provision for damages actions. Cal. Civ. Proc. Code § 352.1

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(West 2007). Thus, Plaintiff had a total of four years from when he knew, or had reason to know

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about the action taken by C/O Seese to file his action.

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Nevertheless, Plaintiff admits that in February of 2010, he was informed during a

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psychiatric evaluation for his Parole Board hearing that he had recently been labeled as both a

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BGF and a Crip. (Doc. 23, p. 9, ¶ 14.) Thus, to be timely, Plaintiff would have had to file this

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action no later than the end of February of 2014. However, Plaintiff did not file this action until

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March 5, 2015 (see Doc. 1) -- more than a year after the statute of limitations had lapsed.

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The merits of Plaintiff’s claims need not be addressed since the statute of limitations is
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dispositive. However, it is noteworthy that when the allegations of the SAC are viewed along

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with the documents which Plaintiff attached as exhibits to his original Complaint, it is evident

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that the information before Defendants at the time they labeled Plaintiff as a BGF associate, did

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not show he was a long-time member of the Crips. (See e.g., Doc. 1, p. 141 (February 28, 1998

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Rules Violation Report indicates Plaintiff stated “I’m not a crip and I don’t run with crips.”); see

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also p. 142 (Classification: ICC-Ad/Seg Committee Action Report, dated February 15, 1998,

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states “ICC is electing to modify [Plaintiff’s] CDC-182, which indicates he is a member of the

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‘Crips.’ However, ICC does not find any documentation to support his being gang affiliated,

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based on this information, ICC is electing to adjust the CDC-812 to reflect no gang affiliation.

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His confidential file is noted.”); see also Id., p. 66 (Work/Gang history report/general chrono

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dated March 9, 2010, in which a correctional officer states that Plaintiff worked as his crew “Lead

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Man” and that, during his supervision of Plaintiff, Plaintiff interacted with several different races

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and several different black gangs on the yard; when he questioned Plaintiff about his gang status

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or affiliation Plaintiff always responded that he was not a Blood or BGF and definitely not a Crip

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and that Plaintiff expressed disdain towards Crips on numerous occasions; and that Plaintiff

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assisted correctional staff whenever there was tension amongst Black inmates and would act as a

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“go-between” staff and inmates to resolve issues, even if the issues was with another race or

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between rival gangs.) Thus, there is no showing that the Defendants had reason to know that

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classifying him as a BGF would place Plaintiff at risk of serious harm.

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Prison officials have a duty under the Eighth Amendment "to take reasonable measures to

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guarantee the safety of inmates, which has been interpreted to include a duty to protect prisoners."

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (citing Farmer v. Brennan, 511

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U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To establish

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a violation of this duty, the prisoner must “show that he is incarcerated under conditions posing a

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substantial risk of serious harm," Farmer, at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 349

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(1981), that the prison officials knew of and disregarded. Id. at 837; Anderson v. County of Kern,

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45 F.3d 1310, 1313 (9th Cir. 1995). Liability may follow only if a prison official "knows that

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inmates face a substantial risk of serious harm and disregards that risk by failing to take
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reasonable measures to abate it." Id. at 847.

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Plaintiff’s allegations, when combined with the exhibits to his original complaint,

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demonstrate that Plaintiff cannot make the above showing. Further, in Plaintiff’s inmate appeal

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(IA No. PVSP-S-12-02521) in which he asserted that the one drawing of a gorilla was insufficient

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evidence to affiliate him with the BGF, he complained only of the negative impact that the

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information had on his parole hearing. He did not make any claim that he was placed at risk of

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physical harm by being identified as a BGF given the fact that he was, in truth, affiliated with the

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Crips criminal gang. (See Doc. 1, pp. 56-63.)

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In any event, the Court finds this action is barred by the statute of limitations. Further,

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since Plaintiff has already had two opportunities to correct the defects in his pleading and he still

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has not stated a claim—and his documents demonstrate that he cannot do so—further leave to

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amend will not be granted. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).

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II.

CONCLUSION & ORDER

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Accordingly, the Court ORDERS:

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This action is DISMISSED with prejudice; and

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The Clerk of the Court is ordered to close this action.

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IT IS SO ORDERED.
Dated:

June 29, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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