Selsor v. Weaver et al

Filing 14

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants 11 , signed by Magistrate Judge Barbara A. McAuliffe on 8/8/16: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY SELSOR,

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Plaintiff,

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vs.
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B. WEAVER, et al.,
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Defendants.

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1:15-cv-00918-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF No. 11)
FOURTEEN (14) DAY DEADLINE

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Findings and Recommendations Following Screening

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I.

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Plaintiff Jeffrey Selsor (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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Background

action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 16, 2015.
In Plaintiff’s original complaint, he named the following defendants: (1) Lt. B. Weaver;

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(2) Correctional Officer Castaneda; (3) Correctional Officer Docanto; (4) Correctional Officer

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T.J. Jordan; (5) Correctional Officer D.D. Nora; and (6) Correctional Officer V. Juarez. (ECF

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No. 1.) On June 8, 2016, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A,

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and found that it failed to state a claim upon which relief may be granted against any defendant.

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(ECF No. 10.) Plaintiff was granted leave to amend his complaint. (Id. at 8.)

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On June 17, 2006, Plaintiff filed an amended complaint. (ECF No. 11.) In Plaintiff’s
amended complaint, he only named Correctional Officers Docanto, Castaneda, and T.J. Jordan as

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defendants. On July 25, 2016, the Court screened the amended complaint and found that Plaintiff

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stated a cognizable claim for excessive force against Defendants Docanto and Jordan for

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allegedly attacking him on September 20, 2014, and for the failure to protect him from the attack

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against Defendant Castaneda, in violation of the Eighth Amendment, but did not state any other

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cognizable claims. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff was ordered to either file a

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second amended complaint, or notify the Court that he did not wish to file any second amended

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complaint and was willing to proceed on the cognizable claims. (ECF No. 12.)

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On August 3, 2016, Plaintiff notified the Court that he did not intend to file a second

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amended complaint and wished to proceed only with the cognizable claims against Defendants

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Docanto, Jordan and Castaneda. (ECF No. 13.) Accordingly, the Court issues the following

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findings and recommendations.

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II.

Discussion
A.

Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 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)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,

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129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
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Plaintiff’s Allegations

Plaintiff is currently incarcerated at the Salinas Valley State Prison (“SVSP”) in Soledad,

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California. The events in the amended complaint are alleged to have occurred at Corcoran State

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Prison. Plaintiff names the following defendants: (1) Correctional Officer Castaneda; (2)

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Correctional Officer Docanto; and (3) Correctional Officer T.J. Jordan. Plaintiff alleges as

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follows:

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On September 20, 2014, at approximately 12:25 hours, while conducting yard release,

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Defendants Docanto and Jordan were performing an unclothed body search of Inmate Zaisa,

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CDCR No. G-23-177, cell 4B2L-37, without incident. Defendant Castaneda was working in the

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control booth while yard release was being conducted. This put him in charge of the cell doors

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opening and closing. At all times relevant to this matter, Plaintiff and Inmate Zaisa shared a cell.

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After searching Inmate Zaisa, Defendant Jordan placed Inmate Zaisa in waist restraints.

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Plaintiff informed Defendants Docanto and Jordan that he did not wish to go to the yard, and

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Defendants Docanto and Jordan said that was okay. Defendant Jordan then placed Plaintiff into

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handcuffs to allow Inmate Zaisa to exit the cell.

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After Plaintiff was secured in handcuffs, Defendant Jordan signaled to Defendant

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Castaneda, who was working the control booth, to open cell 37. Inmate Zaisa then backed out of

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the cell and was escorted by Officers C. Guthrie and Officer B. Resa. With Inmate Zaisa outside

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of the cell, and under escort to the yard, the cell door was activated to close by Defendant

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Castaneda. At this point, with the cell door partially closed and moving, Defendant Docanto,

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without warning or giving any order, reached into the cell and grabbed Plaintiff roughly, yanking

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Plaintiff backward into the steel cell door. Defendant Castaneda observed Plaintiff being

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attacked from behind, and failed to protect Plaintiff from said physical attacks. Instead,

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Defendant Castaneda activated the cell door to begin reopening. Defendant Docanto persisted in

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his attack by punching and kicking Plaintiff in the back and legs. With the cell door now fully

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reopened, Defendant Jordan joined in the attack by punching and kicking Plaintiff in the back

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and legs, pummeling Plaintiff to the ground. When Defendants Docanto and Jordan executed

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their attack, Defendant Castaneda was in power to close the door where Plaintiff was at, and in

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doing so stop the attack by denying Defendants Castaneda and Docanto access to Plaintiff.

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Instead, Defendant Castaneda further opened the cell door, giving Defendants Docanto and

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Jorden even greater access to perpetuate their attack.

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As a result of this “gratuitous attack” by Defendants Docanto and Jordan, Plaintiff

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suffered swelling and bruising to his lower back and legs, lasting several days, and continuing

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nerve damage to his lower back. (ECF No. 11, p. 6.) To carry out this attack, Defendants

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Docanto, Jordan and Castaneda deliberately disregarded CDCR use of force policy, which calls

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for a first or second level supervisor to be present prior to using force in a controlled area, such

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as a cell. Plaintiff has been permanently injured by Defendants Docanto, Jordan, and Castaneda’s

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use of excessive force on September 20, 2014, “administering cruel and unusual punishment on

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the Plaintiff.” (Id.) Plaintiff is suffering from serious lower back pain as a result of the use of

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excessive force. The “unjustified and penologically unnecessary use of excessive force” upon

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Plaintiff by Defendants Docanto, Jordan, and Castaneda on September 20, 2014 violated his

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rights under the Eighth Amendment to the U.S. Constitution in that it constituted cruel and

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unusual punishment. Defendant Castaneda’s failure to intervene while in a capacity to do so

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constituted violating Plaintiff’s Eight Amendment rights.

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Plaintiff alleges a claim against Defendants Docanto, Jordan, and Castaneda for violation

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of his Eighth Amendment right to be free from excessive force in an unprovoked and unjustified

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attack, and against Defendant Castaneda for failing to intervene in an attack on Plaintiff by

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Defendants Docanto and Jordan. Plaintiff seeks a judgment against Defendants, jointly and

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severally, for $250,000 in actual damages to be proved at trial, costs, reasonable attorney’s fees,

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punitive damages, and any other relief to which Plaintiff may be entitled.
C.

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Deficiencies of Complaint
1. Excessive Force

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual

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Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5

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(1992)(citations omitted). Although prison conditions may be restrictive and harsh, prison

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officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and

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personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted). For

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claims of excessive physical force, the issue is “whether force was applied in a good-faith effort

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to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503

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U.S. at 7. Although de minimis uses of force do not violate the Constitution, the malicious and

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sadistic use of force to cause harm always violates the Eighth Amendment, regardless of whether

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or not significant injury is evident. Hudson, 503 U.S. at 9-10; Oliver v. Keller, 289 F.3d 623, 628

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(9th Cir. 2002).
Plaintiff has stated a cognizable claim for excessive force in violation of the Eighth

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Amendment against Defendants Docanto and Jordan for allegedly attacking him on September

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20, 2014. However, Plaintiff has not stated a claim against any other defendant for excessive

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force in violation of the Eighth Amendment. Specifically, Plaintiff has not alleged that

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Defendant Castaneda applied any force to Plaintiff, through physical contact or otherwise. “If

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there has been no physical contact or any physical impact, there is no claim for excessive force.”

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Jacobs v. Woodford, No. 1:08-CV-00369AWIJLT, 2010 WL 3957498, at *4 (E.D. Cal. Oct. 8,

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2010).

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2. Failure to Protect—Eighth Amendment Claim

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

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protect inmates from physical abuse. Farmer v. Brennan, 511 U.S. 825, 832–33, 114 S. Ct. 1970

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(1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). To establish a violation of this

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duty, the prisoner must establish that prison officials were “deliberately indifferent to a serious

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threat to the inmate’s safety.” Farmer at 834. This showing involves subjective and objective

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components: “the official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Id.

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at 837. The question under the Eighth “Amendment is whether prison officials, acting with

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deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to

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his future health ....’ ” Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475,

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125 L. Ed. 2d 22 (1993)).

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At the pleading stage, Plaintiff has stated a cognizable claim against Defendant

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Castaneda for failing to intervene in the attack by Defendants Docanto and Jordan on September

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20, 2014.

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3. CDCR Use of Force Policy
Plaintiff alleges that Defendants Docanto, Jordan, and Castaneda violated CDCR use of

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force policy, which requires a first or second level supervisor to be present prior to using force in

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a controlled area, such as a cell. To the extent that plaintiff attempts to bring any claims solely

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based on Defendants’ violation of prison rules and policies, he may not do so, as alleged

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violations of prison rules and policies do not give rise to a cause of action under § 1983. Section

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1983 provides a cause of action for the deprivation of federally protected rights. “To the extent

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that the violation of a state law amounts to the deprivation of a state-created interest that reaches

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beyond that guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v.

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Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch.

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Dist., 90 F.3d 367, 370 (9th Cir. 1996)); see Davis v. Kissinger, No. CIV S–04–0878 GEB DAD

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P, 2009 WL 256574, * 12 n. 4 (E.D. Cal. Feb. 3, 2009). Nor is there any liability under § 1983

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for violating prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting

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Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997)). Thus, the violation of any CDCR use of

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force policy does not amount to a cognizable claim under federal law, nor does it amount to any

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independent cause of action under section 1983.
4. Defendants Weaver, Nora, and Juarez

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As noted above, Plaintiff’s original complaint named the following defendants: (1) Lt. B.

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Weaver; (2) Correctional Officer Castaneda; (3) Correctional Officer Docanto; (4) Correctional

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Officer T.J. Jordan; (5) Correctional Officer D.D. Nora; and (6) Correctional Officer V. Juarez.

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(ECF No. 1.) Plaintiff’s amended complaint only named Correctional Officers Docanto,

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Castaneda, and T.J. Jordan as defendants. There were no allegations against Lt. B. Weaver,

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Correctional Officer D.D. Nora, or Correctional Officer V. Juarez.

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An amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114

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F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in and of itself without reference to the prior or superseded pleading,” Local Rule 220.

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“All causes of action alleged in an original complaint which are not alleged in an amended

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complaint are waived.” King, 814 F.2d at 567 (citing London v. Coopers Lybrand, 644 F.2d 811,

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814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. Here, as Plaintiff has made no allegations

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against Defendants Weaver, Nora, and Juarez in his first amended complaint, his claims against

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those parties are waived. Thus, those defendants should be dismissed from this action for failure

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to state a cognizable claim against them.

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III.

Conclusion and Recommendations

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Plaintiff’s first amended complaint states a cognizable claim for excessive force in

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violation of the Eighth Amendment against Defendants Docanto and Jordan for allegedly

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attacking him on September 20, 2014, and for the failure to protect him from the attack against

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Defendant Castaneda, in violation of the Eighth Amendment. However, Plaintiff has failed to

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state any other cognizable claim against any other defendant. The Court therefore recommends

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that Plaintiff’s (1) claim for excessive force against Defendant Castaneda; (2) claims against

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Defendants Docanto, Jordan, and Castaneda for violating the CDCR use of force policy; and (3)

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Defendants Weaver, Nora and Juarez, be dismissed from this action. Plaintiff was provided with

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an opportunity to file a second amended complaint, but opted to proceed on the cognizable

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claims. As such, the Court does not recommend granting further leave to amend.

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Based on the foregoing, it is HEREBY RECOMMENDED as follows:

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This action proceed on Plaintiff’s first amended complaint, filed on June 17,

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2016, for excessive force against Defendants Docanto and Jordan for allegedly

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attacking him on September 20, 2014, and for the failure to protect him from the

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attack against Defendant Castaneda, in violation of the Eighth Amendment;

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Plaintiff’s claim for excessive force against Defendant Castaneda, and claims
against Defendants Docanto, Jordan, and Castaneda for violating the CDCR use

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of force policy, be dismissed; and

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Defendants B. Weaver, D. D. Nora, and V. Juarez be dismissed from this action.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 8, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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