Villery v. California Department of Corrections, et al.

Filing 70

ORDER DENYING Plaintiff's 65 Motion for Reconsideration of July 25, 2017 Screening Order, signed by Magistrate Judge Barbara A. McAuliffe on 03/14/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARED M. VILLERY,

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Plaintiff,
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v.

14 JEFFREY BEARD, et al.,
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Case No. 1:15-cv-00987-DAD-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF JULY 25, 2017
SCREENING ORDER
[ECF No. 65]

Defendants.

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Plaintiff Jared M. Villery is a state prisoner proceeding pro se and in forma pauperis in this

20 civil rights action pursuant to 42 U.S.C. § 1983.
21 I.

Background

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Plaintiff filed this action on June 29, 2015. (ECF No. 1.) On July 8, 2015, the then-assigned

23 Magistrate Judge screened Plaintiff’s original complaint and found that Plaintiff failed to state a
24 cognizable claim for relief. (ECF No. 7.) Plaintiff filed a motion for reconsideration of the screening
25 order. (ECF No. 10.) While that motion was pending, the then-assigned Magistrate Judge retired
26 from the bench, and the undersigned was assigned to this matter.
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On September 2, 2015, the then-assigned District Judge granted Plaintiff’s motion for

28 reconsideration in part. The Court’s July 8, 2015 screening order and certain other proceedings were
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1 vacated, and the matter was referred to the undersigned for further proceedings. Shortly thereafter,
2 the currently-assigned District Judge was appointed, and this matter was re-assigned to him. (ECF
3 No. 12.)
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Following the resolution of several motions, on April 8, 2016, the Court issued a screening

5 order finding certain claims in Plaintiff’s original complaint cognizable, and ordering Plaintiff to
6 either file an amended complaint, or notify the Court of his willingness to proceed only on the
7 cognizable claims. (ECF No. 19). Plaintiff then moved for an extension of time to amend his
8 complaint (ECF No. 20), which was granted, (ECF No. 21.) Plaintiff filed a first amended
9 complaint on June 16, 2016. (ECF No. 22.)
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On July 5, 2017, the Court screened Plaintiff’s first amended complaint and issued findings

11 and recommendations. (ECF No. 25.) The Court found that Plaintiff states a cognizable claim
12 against Defendants Kendall, Acosta, Naficy, Jones, Guerrero, Aithal, Seymour, Carrizales,
13 Woodard, Pallares, Hernandez, Fisher, Grimmig, and Miranda for deliberate indifference in
14 violation of the Eighth Amendment, and against Defendants Beard and Kernan for promulgation of
15 a policy to deny single cell housing for inmates with serious mental disorders, in violation of the
16 Eighth Amendment. (Id.) The policy was specifically described as pressuring mental health staff not
17 to recommend single cell housing due to overcrowding. (Id. at 5, 6, 9, 10, 12 (citing ECF No. 12, at
18 7-8).) The Court further recommended dismissal of certain other defendants and claims for the
19 failure to state a claim upon which relief may be granted. (Id.) No objections were filed, and on
20 October 23, 2017, the findings and recommendations were adopted in full. (ECF No. 36.)
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Three months later, on January 30, 2018, the Court held a second informal telephonic

22 discovery conference in this matter. (ECF No. 60.) At the conference, Plaintiff contended that he
23 understood his claim against Defendants Beard and Kernan also to involve an additional policy24 related challenge to a policy against single cell status unless the inmate is subjected to in cell
25 violence. The Court permitted Plaintiff an opportunity to file a motion for reconsideration of the
26 Court’s July 5, 2017 screening order regarding this issue. (ECF No. 61.)
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On February 9, 2018, Plaintiff filed a motion for reconsideration. (ECF No. 65.) On

2 February 22, 2018, Defendants filed an opposition to Plaintiff’s motion for reconsideration. (ECF
3 No. 66.) No reply being permitted, the motion is now deemed submitted. Local Rule 230(l).
4 II.

Discussion

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Under Federal Rule of Civil Procedure 60(b), a party seeking reconsideration from an order

6 may be relieved by demonstrating: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
7 newly discovered evidence that could not have been discovered with reasonable diligence; (3)
8 fraud, misrepresentation, or misconduct by an opposing party; (4) a void judgment; (5) the
9 judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief. Local
10 Rule 230(j)(3) requires a party filing a motion for reconsideration to show the “new or different
11 facts or circumstances [ ] claimed to exist which did not exist or were not shown upon such prior
12 motion, or what other grounds exist for the motion.”
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Motions for relief pursuant to Rule 60(b) are addressed to the sound discretion of the district

14 court. Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004). However, “[a] motion for
15 reconsideration should not be granted, absent highly unusual circumstances, unless the district court
16 is presented with newly discovered evidence, committed clear error, or if there is an intervening
17 change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
18 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
19 Cir. 1999)). Additionally, the motion may not raise new arguments or present evidence that could
20 reasonably have been raised earlier in the litigation. Id. (quoting Kona Enters. Inc. v. Estate of
21 Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).
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In this case, Plaintiff argues that the Court improperly analyzed his allegations in a manner

23 that constitutes clear error. Plaintiff asserts that in addition to his claim that there was a policy to
24 pressure mental health staff not to recommend single cell housing due to overcrowding, he also
25 alleged that the only exception was when a prisoner had been subjected to in-cell violence. Plaintiff
26 argues that the relevant written policy on single-cell status is set forth in Title 15 CCR § 3269,
27 which provides as follows:
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Single cell status shall be considered for those inmates who demonstrate a history
of in-cell abuse, significant in-cell violence towards a cell partner, verification of
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predatory behavior towards a cell partner, or who have been victimized in-cell by
another inmate. Staff shall consider the inmate’s pattern of behavior, not just an
isolated incident. An act of mutual combat in itself does not warrant single cell
status. The following factors must be considered when evaluating single cell
status, noting these factors are not exclusive of other considerations:
(1) Predatory behavior is characterized by aggressive, repeated attempts to
physically or sexually abuse another inmate.
(2) Documented and verified instances of being a victim of in-cell
physical or sexual abuse by another inmate

7 15 CCR § 3269(d). Plaintiff argues that although the policy states that these factors are not
8 exclusive of other considerations, in practice CDCR staff refuses to consider any other factors when
9 evaluating an inmate’s need for single-cell housing. Further, Plaintiff asserts that although other
10 sections of this regulation provide that the classification committee shall consider recommendations
11 by clinical staff for single cell status due to mental health or medical concerns, the unwritten policy
12 at issue in this case effectively nullifies these provisions. (ECF No. 65 p.4.) See 15 CCR § 3269(f)
13 (discussing clinical staff recommendations for single cell status).
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According to Plaintiff, the overall effect of the policies at issue here is that, regardless of an

15 inmate’s mental health needs, staff will neither recommend nor approve single cell status for an
16 inmate unless he has experienced a documented history of significant in-cell abuse or violence,
17 which excludes an inmate’s PTSD symptoms from being considered. In sum, Plaintiff argues that
18 his claim is that the policies at issue result in an inmate’s PTSD mental health symptoms being
19 ignored during the housing classification process until after the inmates has suffered significant in20 cell violence of abuse, in violation of the Eight Amendment.
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Defendants oppose Plaintiff’s motion, arguing that the Court properly found only one

22 cognizable policy claim for the implementation of an alleged policy to pressure mental health staff
23 not to recommend single cell housing due to overcrowding, and that Plaintiff fails to state any
24 additional policy claim. Defendants further argue that to the extent Plaintiff seeks to sue any
25 particular individuals for not properly following the written policies in practice, he has not alleged
26 facts linking any individuals to this claim. Finally, Defendants argue that to the extent Plaintiff
27 seeks to bring a claim on behalf of other inmates or to enact a statewide policy change, he cannot do
28 so.
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A complaint must contain “a short and plain statement of the claim showing that the pleader

2 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
5 550 U.S. 544, 555 (2007)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to
6 state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility
7 demands more than the mere possibility that a defendant committed misconduct and, while factual
8 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78. Prisoners
9 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and
10 to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
11 (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the
12 plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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Supervisory personnel may not be held liable under section 1983 for the actions of

14 subordinate employees based on respondeat superior or vicarious liability. Crowley v. Bannister,
15 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d
16 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 (9th Cir. 2012) (en
17 banc). “A supervisor may be liable only if (1) he or she is personally involved in the constitutional
18 deprivation, or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct
19 and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation marks omitted);
20 accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the latter theory,
21 supervisory liability exists even without overt personal participation in the offensive act if
22 supervisory officials implement a policy so deficient that the policy itself is a repudiation of
23 constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977
24 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
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In this case, the Court found that Plaintiff alleged sufficient facts to show that Defendants

26 Beard and Kernan were responsible for implementing a policy that denies single-cell housing to
27 inmates with serious mental disorders because of overcrowding in the prison. The facts included
28 allegations that sometime around September 25, 2013, Defendant Kendall forwarded an email to all
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1 mental health staff at LAC instructing them to refrain from making single cell housing
2 recommendations due to overcrowding. (First Am. Compl., ECF No. 22, at ¶ 46.) Plaintiff further
3 alleged that Defendant Acosta spoke with him about the email, and described a policy being
4 dictated from custody staff, and that “CDCR was putting pressure on mental health staff due to
5 overcrowding.” (Id.) Likewise, Plaintiff alleged that sometime in 2014, Defendant Carrizales told
6 him at CCI that custody staff had instructed mental health staff to refrain from making any housing
7 recommendations due to overcrowding. (Id. at ¶ 57.) Plaintiff also alleged that he met with
8 Defendant Grimmig on May 6, 2015, and she stated that mental health staff at CSATF would not
9 make any housing recommendations for single cell housing because custody staff instructed them
10 not to due to overcrowding. (Id. at ¶ 83.) Based on these allegations and the September 2, 2015
11 order granting in part Plaintiff’s motion for reconsideration, the Court found that Plaintiff stated a
12 claim against Defendants Beard and Kernan for promulgation of a policy to deny single cell housing
13 for inmates with serious mental disorders due to overcrowding.
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Now Plaintiff is arguing that despite the written regulations on the issue, an unwritten policy

15 exists to limit staff’s consideration of inmates for single cell status only to those who demonstrate a
16 history of significant in-cell abuse or violence, to the exclusion of all other factors. Plaintiff has not
17 alleged sufficient facts showing the implementation of this policy in this case. (ECF No. 22.) In
18 support of his argument, Plaintiff cites his conclusory assertions that after an inmate has perpetrated
19 or suffered serious bodily harm, or have inflicted such harm on other inmates, this will be
20 considered in determining whether they will be given single cell housing. (FAC ¶¶ 99-100.) These
21 allegations are not factual, nor are they sufficient to support Plaintiff’s argument that he sufficiently
22 pleaded that staff was not following regulations and were not considering any factors other than a
23 significant history of in-cell violence. Plaintiff also cites his allegations that Defendant Fisher told
24 him that he required an extensive, documented pattern of violence against cellmates for a single-cell
25 housing recommendation, but while this single statement by a counselor may show the counselor’s
26 consideration of violence in making housing recommendations, it is not sufficient to show the
27 existence of a policy.
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In sum, the Court does not find sufficient factual allegations in the first amended complaint

2 to support the second policy claim that Plaintiff asserts in his motion for reconsideration, nor does it
3 find any grounds to reconsider its prior screening order. Plaintiff not having met his burden to show
4 grounds for reconsideration, his motion will be denied.
5 III.

Conclusion

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For the reasons explained above, Plaintiff’s motion for reconsideration of the Court’s July 5,

7 2017 screening order is HEREBY DENIED.
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9 IT IS SO ORDERED.
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Dated:

/s/ Barbara

March 14, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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