Hilson v. Arnett et al

Filing 54

FINDINGS and RECOMMENDATIONS to Dismiss Non-Cognizable Claims; Fourteen (14) Day Deadline signed by Magistrate Judge Michael J. Seng on 12/8/2017. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RASHEED HILSON, SR., 9 10 Plaintiff, v. CASE NO. 1:15-cv-01240-MJS (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS (ECF NO. 11) 11 12 JESSE ARNETT, et al., 13 Defendants. FOURTEEN (14) DAY DEADLINE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He has consented to Magistrate Judge jurisdiction. (ECF No. 7.) Defendants declined to consent to Magistrate Judge jurisdiction. (ECF No. 30) On August 01, 2016, the Court screened Plaintiff’s first amended complaint (ECF No. 11) and found it states cognizable Eighth Amendment excessive force claims against Defendants Arnett, Gamboa, Potzernitz, Flores, and CO Jane Doe, and an Eighth Amendment failure to protect claim against Defendant Marsh. (ECF No. 16.) The remaining claims were not cognizable as pled. Plaintiff was given the opportunity to file an amended complaint or to proceed only on the cognizable claims. He chose to proceed. (ECF No. 17.) Thereafter, Plaintiff’s claims against non-parties and his claims regarding state court criminal proceedings were dismissed without prejudice. The remaining claims were dismissed with prejudice for failure to state a claim, as were the 1 remaining named defendants. (ECF No. 19.) 2 I. Williams v. King 3 Federal courts are under a continuing duty to confirm their jurisdictional power and 4 are “obliged to inquire sua sponte whenever a doubt arises as to [its] existence[.]” Mt. 5 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations 6 omitted). On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. 7 § 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not 8 served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a 9 civil claim. Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court held that 10 a Magistrate Judge does not have jurisdiction to dismiss a claim with prejudice during 11 screening even if the plaintiff has consented to Magistrate Judge jurisdiction. Id. 12 Here, Defendants were not yet served at the time that the Court screened the first 13 amended complaint and therefore had not appeared or consented to Magistrate Judge 14 jurisdiction. Because Defendants had not consented, the undersigned’s dismissal of 15 Plaintiff’s claims is invalid under Williams. Because the undersigned nevertheless stands 16 by the analysis in his previous screening order, he will below recommend to the District 17 Judge that the non-cognizable claims be dismissed. 18 II. Findings and Recommendations on First Amended Complaint 19 A. 20 The Court is required to screen complaints brought by prisoners seeking relief Screening Requirement 21 against a governmental entity or an officer or employee of a governmental entity. 28 22 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 23 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 24 which relief may be granted, or that seek monetary relief from a defendant who is 25 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, 26 or any portion thereof, that may have been paid, the court shall dismiss the case at any 27 time if the court determines that . . . the action or appeal . . . fails to state a claim upon 28 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 2 1 B. 2 Section 1983 provides a cause of action against any person who deprives an Pleading Standard 3 individual of federally guaranteed rights “under color” of state law. 42 U.S.C. § 1983. A 4 complaint must contain “a short and plain statement of the claim showing that the pleader 5 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 7 mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 8 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not 9 required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 10 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual 11 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 12 Under section 1983, Plaintiff must demonstrate that each defendant personally 13 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 14 2002). This requires the presentation of factual allegations sufficient to state a plausible 15 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 16 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have 17 their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. 18 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere 19 possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 20 678; Moss, 572 F.3d at 969. Plaintiff’s Allegations 21 C. 22 Plaintiff is detained at California Correctional Institution but complains of acts that 23 occurred at California State Prison (“CSP”) in Corcoran, California. He names the 24 following defendants in their individual and official capacities: Correctional Sergeants 25 (“CS”) Jesse Arnett, Helen Gamboa, Joseph Potzernitz and Jesse Gonzales; 26 Correctional Officer (“CO”) Hector Flores; Correctional Lieutenants (“CL”) Marsh and 27 Wentherford; and Does 1-20. 28 3 Plaintiff’s allegations are not presented chronologically and are somewhat difficult 1 2 to follow. In brief summary, Plaintiff claims that he was improperly denied the use of a 3 wheelchair as an accommodation for his multiple medical issues. As a result, he had 4 difficulty moving about the prison and was unable to participate fully in prison 5 programming. Also as a result, Defendants subjected him to several assaults. One of 6 these assaults resulted in Plaintiff being criminally prosecuted. His more detailed 7 allegations may be summarized essentially as follows1: 8 1. 9 Plaintiff’s history Plaintiff has neuropathy, stenosis, and back pain resulting from a slip and fall down 10 stairs at Riverside County Jail. He has a chipped vertebra from gunshot wounds and has 11 a bullet lodged behind his right eye. He has an ear injury that causes vertigo. He has long 12 standing knee pain. Plaintiff has been partially disabled or “DPO”2 since 2011. While incarcerated at 13 14 North Kern State Prison from 2008 to 2011, Plaintiff purchased a cane. He also 15 purchased a wheelchair while detained at Riverside County Jail. Plaintiff’s DPO status was revoked following an altercation with other inmates on 16 17 February 27, 2013 at Salinas Valley State Prison. The circumstances regarding the 18 revocation of Plaintiff’s DPO status do not involve the Defendants in this action and will 19 not be addressed further. 20 2. 21 Plaintiff’s transfer to CSP On June 25, 2013, Plaintiff was transferred from Salinas Valley State Prison to 22 CSP. Plaintiff’s wheelchair was not transferred with him, in violation of the Americans with 23 Disability Act. Non-party CO Johnson and other unnamed second watch staff denied 24 Plaintiff the use of a wheelchair because Plaintiff did not have a chrono. However, 25 26 1 27 28 Plaintiff presents over three hundred pages of documents in support of his complaint. Plaintiff does not explain the import of the documents, other than to periodically cite to them. The court is not required to, and will not, sift through Plaintiff's exhibits to decipher the claims he is attempting to make. Plaintiff must explain his claims in the body of the complaint. 2 A “DPO” is an intermittent wheelchair user. 4 1 Plaintiff could not obtain a chrono because he did not have a wheelchair to go to see a 2 specialist. 3 At some point, Defendant Wenthenford issued a modification order allowing 4 Plaintiff temporary usage of a wheelchair upon Plaintiff’s request. However, he did not 5 ensure that this request would be upheld by his subordinates. 6 3. 7 The July 2, 20133 attack On July 2, 2013, Plaintiff returned to his cell and noticed that his wheelchair was 8 no longer there. Plaintiff asked to speak with a sergeant. Non-party CO Johnson lifted 9 Plaintiff and his wheelchair from behind and shoved Plaintiff into the cell. Plaintiff collided 10 with the top locker. Non-party CO Ysguima intervened and closed Plaintiff’s cell door. 11 Defendant Gonzales ordered Johnson escorted off the yard. 12 4. 13 The July 31, 2013 incident On July 31, 2013, Plaintiff attended the medical clinic and begged the L.V.N. 14 Nurse to be seen by a doctor due to his extreme pain. Plaintiff was told to put in a request 15 to be seen. Plaintiff explained that he had submitted fifteen to twenty medical requests 16 but still had not been seen. Defendant Gonzales and others came to the clinic, cuffed 17 Plaintiff behind the back, and removed him from the clinic in restraints. Plaintiff and 18 Gonzales began to argue. Gonzales had Plaintiff’s cuffs removed and stood in front of 19 Plaintiff in a fighting stance. Plaintiff sat down and asked to be given his wheelchair and 20 cane. Gonzales told Plaintiff that he would never be given a wheelchair. He told Plaintiff, 21 “If you can’t walk, crawl. If you can’t crawl, scoot.” Gonzales got on his radio and soon 22 thereafter, Johnson appeared. Gonzales and Johnson whispered to each other. Johnson 23 snatched Plaintiff’s head forward between Plaintiff’s knees and he and an unknown 24 officer lifted Plaintiff to his feet by his arms and wrist. Plaintiff suffered pain and was 25 unable to move easily for a few days. 26 5. The August 2, 2013 attack 27 28 3 Plaintiff lists the date of this attack as July 2, 2015. However, this appears to be a typographical error as Plaintiff was no longer incarcerated at CSP in 2015. 5 1 On August 2, 2013, while attempting to use the lavatory in his cell, Plaintiff fell with 2 such force (due to his weight, 266 pounds) that he cracked his skull on the edge of a 3 locker. 4 Despite repeated “man-down” requests, Defendant CS Helen Gamboa delayed 5 calling for help for 30 minutes, saying “You don’t wanta [sic] go man down I promise you,” 6 and “I guess I’ma [sic] have to show you.” Plaintiff had blood on his hands and head and 7 on the floor, but Gamboa claimed she could not see it. 8 Eventually, custody staff came and found Plaintiff lying on the ground in pain. 9 Rather than helping Plaintiff, Defendant Potzernitz asked the tower for riot gear. Five 10 minutes later, Jesse Arnett (or someone who resembles him) and Potzernitz, who by then 11 was also in riot gear, jumped on top of Plaintiff and began to punch, kick and twist 12 Plaintiff’s left leg at the ankle trying to break it. Potzernitz finally stopped when an 13 unknown sergeant told him to stop. 14 This unidentified sergeant directed staff to lift Plaintiff onto a stretcher. Before 15 doing so, Plaintiff was placed in mechanical restraints behind his back. The cuffs were 16 too tight and cut off Plaintiff’s circulation. Plaintiff expressed that he was in extreme pain 17 but nothing was done. After Plaintiff was placed on the stretcher, his weight applied 18 pressure and cut off circulation to his cuffed hands, causing pain. The driver of the 19 emergency vehicle drove fast and hit bumps on the road with the purpose of causing 20 Plaintiff extreme pain. Plaintiff yelled at him and the attending female correctional officer 21 to slow down, but he did not. The restraints were finally taken off at the request of the 22 doctor at the hospital. Plaintiff received a CT scan. Dr. Edgar Clark made a “favorable 23 diagnosis.” 24 Plaintiff expressed his fear of second watch staff to Dr. Clark. He explained that he 25 would be subjected to more violent assaults if he was not provided a wheelchair. He told 26 Clark that his facility physician would not consider his accommodation request. 27 Nevertheless, Clark returned Plaintiff to his facility and referred him to his facility medical 28 clinic regarding his accommodation request. 6 1 Plaintiff informed non-party CO Medsen that he feared further assaults from 2 second watch staff. Upon his return to CSP, Plaintiff also informed Defendant 3 Wenthenford and mental health staff (non-parties Stokes and Spokes) regarding his 4 fears. Plaintiff informed Wenthenford that he had a bullet behind his right eye and that he 5 could be seriously injured if he sustained an injury to his eye. His fears were not taken 6 seriously. All of these individuals denied Plaintiff’s request to be placed in administrative 7 segregation (“ASU”). 8 Plaintiff remained in pain and requested a wheelchair to get around. His request 9 was denied, in violation of CDCR policy. Without a wheelchair, Plaintiff was unable to 10 attend religious services. Plaintiff also remained without food for six days despite being 11 told by CO Doe that he would be fed.4 CO Doe also denied Plaintiff the use of a 12 wheelchair. 13 6. 14 The August 10, 2013 attack On August 10, 2013, Plaintiff was interviewed by Defendant CS Gonzales 15 regarding Plaintiff’s request for a cane and a wheelchair. Gonzales is not a doctor. During 16 the interview, CS Gonzales said, “You already know how I feel about you. I think you’re a 17 piece of shit.” Plaintiff advised Gonzales of the bullet behind his eye and his fears of 18 further injury if the bullet was dislodged during an assault. Plaintiff’s request for a 19 wheelchair was denied. Gonzales also vacated a modification order that had been issued 20 by Defendant Wenthenford, which had kept Plaintiff close to program facilities and 21 services and afforded him a lower bunk on a lower tier. Plaintiff contends that Gonzales 22 should have granted Plaintiff’s request for a wheelchair on a temporary basis until Plaintiff 23 could be seen by medical staff. 24 After speaking with Gonzales, Plaintiff stood outside the door to Defendant 25 Marsh’s office and asked to speak with Marsh. Defendants Potzernitz and Flores, as well 26 27 28 4 These allegations contradict Plaintiff’s prior complaint, in which he stated that, during this time, he attended Muslim religious services to eat. See Compl. ¶ 19, ECF No. 1 at 14. 7 1 as other officers, told Plaintiff to leave because Marsh did not want to talk to him. Plaintiff 2 was escorted out of the office. 3 Later that day, Plaintiff was informed by Arnett, Gamboa, and Flores that he was 4 being moved to a new cell. Plaintiff questioned the move. He did not believe he was 5 compatible with his new cell mate due to his cell mate requiring a lower bunk and “some 6 other issues that derived from the streets.” Nevertheless, Plaintiff was handcuffed and 7 moved to the new cell. Once in the new cell, Plaintiff brought his hand to the food port to 8 be uncuffed. After one cuff was removed, Plaintiff turned slightly so that the other cuff 9 could be removed. Arnett and Gamboa then pepper sprayed Plaintiff, and unspecified 10 correctional officers entered the cell and recuffed Plaintiff. 11 Flores and Potzernitz escorted Plaintiff to the medical clinic. They placed pressure 12 on his cuffs, causing pain to Plaintiff’s wrist. Plaintiff leaned back to alleviate the pressure 13 but was admonished by Potzernitz. Flores and Potzernitz then began pulling Plaintiff’s 14 arms. They lifted Plaintiff, who weighs over 260 pounds, into the air and slammed him on 15 his right eye. They punched, kicked, choked, and stabbed him until he defecated on 16 himself. Gamboa then sprayed Plaintiff again with pepper spray. CL Marsh watched the 17 assault and laughed. Plaintiff claims that the assault was “pre-ordained” by Marsh and/or 18 non-party Captain M.T. Cisneros. 19 Plaintiff was cuffed around the ankles and forced to walk soiled and barefoot to the 20 clinic. Non-party LVN Ballesteros completed a wound check and Plaintiff was returned to 21 his cell. 22 As a result of the multiple assaults, Plaintiff became suicidal and was taken to 23 High Desert State Prison for a crisis bed. There, he was placed in a rubber room for two 24 days. He was then returned to CSP and ultimately transferred to the California Substance 25 Abuse Treatment Facility (“CSATF”) on November 7, 2013. 26 Plaintiff was later found guilty on a Rules Violation Report of battery on a peace 27 officer in relation to this incident, and the matter was referred to the District Attorney for 28 criminal charges. The case is pending. Plaintiff claims that the delay in referring the 8 1 charges to the District Attorney violated Due Process. Plaintiff also raises various claims 2 regarding the state court’s jurisdiction over his criminal case.5 3 7. 4 Conspiracy allegations Plaintiff claims that the above-described acts were part of a conspiracy against 5 him by “Green Wall gang members.” In support of his allegation of conspiracy, he claims 6 that “Green Wall gang members” told other inmates that mass searches of their housing 7 facility would cease if they “got rid of” Plaintiff. However, Plaintiff’s safety was assured by 8 the shot-callers on the yard. 9 8. 10 Relief sought Plaintiff seeks $10,000,000 in compensatory damages, $1 in nominal damages, 11 and $10,000,000 in punitive damages. He also seeks a declaration from the California 12 Department of Corrections (“CDCR”) that these Defendants violated his rights. He seeks 13 to be removed from state custody and placed into federal custody. He asks that his 14 pending state criminal proceedings be removed to this Court. He asks that Defendants be 15 arrested and that their public employment be terminated. He wants polygraph tests run 16 on Defendants. He wishes to lodge his state court “counter-claim” in federal court. 17 D. 18 Discussion 1. 19 Allegations against non-parties Plaintiff previously was advised that leave to amend was not granted for the 20 purpose of allowing Plaintiff to present new, unrelated claims. See Fed. R. Civ. P. 21 20(a)(2). Nevertheless, Plaintiff’s first amended complaint contains new allegations not 22 previously discussed. These allegations run against individuals Plaintiff has not named as 23 defendants. Rule 10(a) of the Federal Rules of Civil Procedure requires that each 24 defendant be named in the caption of the complaint. A complaint is subject to dismissal if 25 “one cannot determine from the complaint who is being sued, [and] for what relief. . . .” 26 27 28 5 Plaintiff presents a variety of arguments concerning bonds, corporations, nationality, citizenship and the like. Plaintiff appears to be raising a “sovereign citizen” claim. “Courts across the country ‘have uniformly rejected arguments’ based on the sovereign citizen ideology as frivolous, irrational, or unintelligible. United States v. Staten, No. 1:10-cr-179, 2012 WL 2389871, at *3 (M.D. Pa. June 25, 2012) (collecting cases). The Ninth Circuit has rejected arguments premised on the ideology as ‘utterly meritless.’ See United States v. Studley, 783 F.2d 934, 937 n.3 (9th Cir. 1986).” Mackey v. Bureau of Prisons, No. 1:15-CV-1934-LJO-BAM, 2016 WL 3254037, at *1 (E.D. Cal. June 14, 2016). 9 1 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). 2 The Court will not address the merits of new claims against individuals not named 3 as defendants. This includes, but is not limited to, all claims against non-party CO 4 Johnson; claims based on the July 2, 2013 and July 31, 2013 attacks; and claims arising 5 prior to Plaintiff’s incarceration at PVSP. These claims are directed at non-parties and do 6 not appear to arise out of the same transaction or occurrence as the claims against 7 Defendants. These claims should be dismissed. 8 9 2. Allegations against private individuals Plaintiff appears to raise allegations of deliberate indifference against an unnamed 10 ambulance driver and Dr. Edgar Clark. These individuals are not named as defendants 11 and it is unclear whether Plaintiff intends to proceed against them. As such, the Court will 12 not analyze the substance of these claims. 13 Additionally, Plaintiff is advised that prisoners may only bring § 1983 claims 14 against individuals acting “under color of state law.” 42 U.S.C. § 1983. Private individuals 15 not employed by the prison or another state agency do not act under color of state law 16 unless they are so closely affiliated with the state that their conduct “may fairly be treated 17 as that of the state itself.” Jensen v. Lane Cty., 222 F.3d 570, 575 (9th Cir. 2000) (citing 18 Jackson v. Metro. Edison Co., 418 U.S. 345, 350 (1974). In the prison medical care 19 context, such close affiliations exist where a private physician or hospital contracts with a 20 state prison to provide care to inmates. See West v. Atkins, 487 U.S. 42, 55-56 (1988); 21 George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F.Supp.2d 922, 936 (N.D. Cal. 2010); see 22 also Jensen, 222 F.3d at 575 (relationship between county and private psychiatric group 23 providing mental evaluations was so “deeply intertwined” that psychiatrist who signed 24 commitment order acted under color of state law for § 1983 purposes). 25 Plaintiff has alleged no facts in this regard. To the extent he intends to proceed 26 against private individuals who are not employed by the prison, he must allege facts to 27 meet the legal standards set forth above. 28 10 1 2 3 3. Eighth Amendment claims i. Deliberate Indifference to Medical Need The Eighth Amendment prohibits the imposition of cruel and unusual punishment 4 and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, 5 and decency.’“ Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the 6 Eighth Amendment when he acts with “deliberate indifference” to the serious medical 7 needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). 8 “To establish an Eighth Amendment violation, a plaintiff must satisfy both an 9 objective standard—that the deprivation was serious enough to constitute cruel and 10 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 11 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). To establish the objective prong, a plaintiff 12 must show a serious medical need by demonstrating that “failure to treat a prisoner's 13 condition could result in further significant injury or the unnecessary and wanton infliction 14 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). 15 To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful 16 act or failure to respond to a prisoner's pain or possible medical need and (b) harm 17 caused by the indifference.” Jett, 439 F.3d at 1096. “Indifference may appear when 18 prison officials deny, delay, or intentionally interfere with medical treatment, or it may be 19 shown by the way in which prison physicians provide medical care.” Id. (internal 20 quotations omitted). When a prisoner alleges that a delay of medical treatment amounts 21 to deliberate indifference, the prisoner must show that the delay led to further injury. See 22 Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) 23 (holding that “mere delay of surgery, without more, is insufficient to state a claim of 24 deliberate medical indifference”). 25 Plaintiff accuses Defendant Gamboa of delaying a response to Plaintiff’s August 2, 26 2013 “man down” requests for 30 minutes. However, according to Plaintiff, Gamboa 27 responded to the requests and stated she did not see the blood Plaintiff claimed was on 28 his hands or head. Thus, it appears Gamboa was not aware that Plaintiff had a serious 11 1 medical need requiring treatment. Furthermore, Plaintiff does not allege that this thirty 2 minute delay worsened his condition. Where a plaintiff alleges delay that constitutes 3 deliberate indifference, he must allege that the delay caused “significant harm and that 4 Defendants should have known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 744 5 (9th Cir. 2002). Plaintiff has not done that here, and thus his claim against Gamboa 6 based on her failure to respond immediately should be dismissed. 7 It appears that Plaintiff is also alleging deliberate indifference due to the 8 Defendants’ failure to provide him with a wheelchair. However, these claims appear to be 9 based solely on an alleged CDCR policy requiring custody staff to provide inmates with 10 interim use of a wheelchair upon request and until medical need can be determined. 11 Such a policy does not set the bar for an Eighth Amendment constitutional claim. Plaintiff 12 asserts no facts to indicate that he had a medical need for a wheelchair, that any 13 Defendant was aware of that need, or that any Defendant’s failure to provide the same 14 was sufficiently egregious to amount to deliberate indifference. To the contrary, 15 documents attached to Plaintiff’s complaint reflect that medical staff consistently 16 determined that Plaintiff had no medical need for a wheelchair. His repeated requests for 17 such accommodation to medical staff were denied. His DPO status had been revoked 18 prior to his arrival at PVSP. In light of such determinations, Defendants, all of whom are 19 non-medical custody staff, cannot be said to be have been deliberately indifferent to 20 Plaintiff’s medical need. 21 22 ii. Excessive Force “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment 23 places restraints on prison officials, who may not ... use excessive physical force against 24 prisoners.” Farmer, 511 U.S. at 832 (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 25 “[W]henever prison officials stand accused of using excessive physical force in violation 26 of the [Eighth Amendment], the core judicial inquiry is ... whether force was applied in a 27 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 28 harm.” Hudson, 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 (1986)). 12 1 When determining whether the force was excessive, the court looks to the “extent 2 of the injury suffered by an inmate . . . , the need for application of force, the relationship 3 between that need and the amount of force used, the threat ‘reasonably perceived by the 4 responsible officials,’ and ‘any efforts made to temper the severity of a forceful 5 response.’” Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). While de minimis 6 uses of physical force generally do not implicate the Eighth Amendment, significant injury 7 need not be evident in the context of an excessive force claim, because “[w]hen prison 8 officials maliciously and sadistically use force to cause harm, contemporary standards of 9 decency always are violated.” Hudson, 503 U.S. at 9 (citing Whitley, 475 U.S. at 327). 10 The extent of injury suffered by the plaintiff may indicate the amount of force 11 applied. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “[N]ot ‘every malevolent touch by a 12 prison guard gives rise to a federal cause of action.’” Id. (quoting Hudson, 503 U.S. at 9). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind. An inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim. Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 U.S. at 37-38 (internal citations and some internal quotation marks omitted). Plaintiff here accuses Defendants Arnett and Potzernitz of attacking him in response to an emergency “man down” request while Plaintiff lay on the floor of his cell bloodied and in pain. Plaintiff also accuses Defendants Arnett, Gamboa, Flores, and Potzernitz of spraying him with pepper spray and brutally attacking him without provocation. These allegations are sufficient to state a claim. Plaintiff also alleges that the mechanical restraints placed on him during an ambulance ride were too tight. “In general, in cases where tight handcuffing was found to constitute excessive force, the plaintiff was in visible pain, repeatedly asked the defendant to remove or loosen the handcuffs, had pre-existing injuries known to the 13 1 defendant, or alleged other forms of abusive conduct by the defendant.” Reviere v. 2 Phillips, 2014 WL 711002, at *6 (E.D. Cal. Feb. 21, 2014) (collecting cases). In order to 3 properly assert a claim for excessive force for tight handcuffs, Plaintiff must identify those 4 individuals who were aware that the handcuffs were so tight that they were causing 5 Plaintiff pain and then did nothing to alleviate that pain. See Shaw v. City of Rendondo 6 Beach, 2005 WL 6117549, at *7 (C.D. Cal. 2005) (“In those tight handcuffing cases in 7 which courts have found excessive force, the arrestee was either in visible pain, 8 complained of pain, alerted the officer to pre-existing injuries, sustained more severe 9 injuries, was in handcuffs for a longer period of time, asked to have the handcuffs 10 loosened or released, and/or other forms of abusive conduct in conjunction with the tight 11 handcuffing.”) Plaintiff states that he told two individuals that his handcuffs were causing 12 pain – the ambulance driver, and an unnamed female correctional officer. However, as 13 stated above, Plaintiff has stated no facts to suggest that the ambulance driver was 14 acting under color of state law. Plaintiff allegations are cognizable only as to the female 15 correctional officer, whom the Court will refer to as CO Jane Doe. 16 The use of Doe defendants generally is disfavored in federal court. Wakefield v. 17 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 18 637, 642 (9th Cir. 1980)). The Court cannot order the Marshal to serve process on any 19 Doe defendants until such defendants have been identified. See, e.g., Castaneda v. 20 Foston, No. 1:12-cv-00026 WL 4816216, at *3 (E.D. Cal. Sept. 6, 2013). Plaintiff will be 21 given the opportunity to identify CO Jane Doe through discovery prior to service. Id. 22 (plaintiff must be afforded an opportunity to identify unknown defendants through 23 discovery unless it is clear that discovery would not uncover their identities). If and when 24 he is able to identify CO Jane Doe, he must move to amend his complaint to substitute 25 this defendant’s true name, so that service of process may be initiated upon her. 26 27 iii. Failure to Protect Prison officials have a duty to take reasonable steps to protect inmates from 28 physical abuse. Farmer, 511 U.S. at 832-33 (1994) (quotations omitted). To establish a 14 1 violation of this duty, the prisoner must show first, that he was incarcerated under 2 conditions posing a substantial risk of serious harm; and second, that a prison official 3 knew of and was deliberately indifferent to this risk. Id. at 834. Plaintiff here accuses CL 4 Marsh of watching the August 10, 2013 assault on Plaintiff, having the power to stop it, 5 and not doing anything to intervene. Plaintiff has thus asserted a viable claim against this 6 Defendant. 7 8 4. Due Process The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, 9 liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Although 10 prisoners retain due process rights, those rights are limited “by the nature of the regime 11 to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 12 (1974) (citations omitted). To the extent Plaintiff asserts a due process claim against any 13 Defendant for falsifying disciplinary charges, he fails to state a claim. Buckley v. Gomez, 14 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be 15 free from wrongfully issued disciplinary reports), aff'd without opinion, 168 F.3d 498 (9th 16 Cir. 1999); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (prisoner's claims 17 based on allegedly false charges do not state a constitutional claim); Brown v. CMC, 18 (C.D. Cal. May 18, 2010) (“allegations of a fabricated RVR, alone, do not support a 19 cognizable due process claim”). 20 The Ninth Circuit has recognized “a clearly established constitutional due process 21 right not to be subjected to criminal charges on the basis of false evidence that was 22 deliberately fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074-75 23 (9th Cir. 2001); see also Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101, 24 1111-12 (9th Cir. 2010) (relying on Devereaux to hold that a state investigator “who 25 deliberately mischaracterizes witness statements in her investigative report also commits 26 a constitutional violation”). However, to the extent Plaintiff intends to pursue a claim in 27 relation to his state court criminal proceedings, such claims should be dismissed for the 28 reasons stated in detail below. 15 1 2 5. Conspiracy Conspiracy under § 1983 merely provides a mechanism by which to plead or 3 prove a constitutional or statutory violation. Landrigan v. City of Warwick, 628 F.2d 736, 4 742 (1st Cir. 1980). Although conspiracy claims are actionable under Section 1983, “it is 5 necessary that there have been, besides the agreement, an actual deprivation of a right 6 secured by the Constitution and laws.” Id. at 742. A pro se complaint containing only 7 conclusory, vague, or general allegations of conspiracy to deprive a person of 8 constitutional rights will not withstand a motion to dismiss. Zemsky v. City of New York, 9 821 F.2d 148, 152 (2nd Cir. 1987). 10 Plaintiff has not pled sufficient facts to support a cognizable claim for a conspiracy 11 to violate Plaintiff’s constitutional rights. Plaintiff’s allegations that unidentified “Green 12 Wall gang members” advised other prisoners that mass cell searches would stop if they 13 “got rid” of Plaintiff is insufficient to support a claim that Defendants conspired to attack 14 Plaintiff or deny him medical accommodations. This claim should therefore be dismissed. 15 16 6. Violation of CDCR Policies Insofar as Plaintiff brings suit against any of the Defendants for violations of CDCR 17 policy, he is advised that a violation of a prison regulation or policy is not a per se 18 constitutional violation. See Davis v. Kissinger, 2009 WL 256574, *12 n.4 (E.D. Cal. 19 2009). Thus, complaints that prison officials violated prison policy will not support a 20 Section 1983 claim. 21 22 7. The Americans with Disabilities Act Title II of the Americans with Disabilities Act (“ADA”) “prohibit[s] discrimination on 23 the basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). “To 24 establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified 25 individual with a disability; (2) [he] was excluded from participation in or otherwise 26 discriminated against with regard to a public entity's services, programs, or activities; and 27 (3) such exclusion or discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 28 1052. Title II of the ADA applies to inmates in state prisons. Pennsylvania Dept. of 16 1 Corrections v. Yeskey, 524 U.S. 206 (1998); see also Armstrong v. Wilson, 124 F.3d 2 1019, 1023 (9th Cir. 1997); see, Duffy v. Riveland, 98 F.3d 447, 453–56 (9th Cir. 1996). 3 “To recover monetary damages under Title II of the ADA, a plaintiff must prove 4 intentional discrimination on the part of the defendant,” and the standard for intentional 5 discrimination is deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 6 (9th Cir. 2001). “Deliberate indifference requires both knowledge that a harm to a 7 federally protected right is substantially likely, and a failure to act upon that likelihood.” 8 Id. at 1139. In the ADA context, a plaintiff must both “identify ‘specific reasonable’ and 9 ‘necessary’ accommodations that the state failed to provide” and show that defendant's 10 failure to act was “a result of conduct that is more than negligent, and involves an 11 element of deliberateness.” Id. at 1140. 12 The “alleged deliberate refusal of prison officials to accommodate [a prisoner's] 13 disability-related needs in such fundamentals as . . . medical care . . . constitutes 14 exclusion from participation in or . . . denial of the benefits of the prison's services, 15 programs, or activities.” United States v. Georgia, 546 U.S. 151, 157 (2006). 16 Plaintiff’s ADA claim fails. He has not identified his disability. He has also not 17 asserted facts indicating he was excluded from or discriminated against with regard to 18 services, program, or activities at CSP because of his disability. Though Plaintiff asserts 19 that Defendants improperly denied him a wheelchair at various times, the Court again 20 notes that non-defendant medical staff regularly and consistently rejected Plaintiff’s 21 requests for a wheelchair and claims of disability. Plaintiff has not shown that Defendants 22 denied him reasonable and necessary accommodations with deliberate indifference. 23 Therefore, this claim should be dismissed. 24 25 8. State Criminal Proceedings To the extent that Plaintiff seeks intervention in ongoing state criminal 26 proceedings, this Court must abstain. Under principles of comity and federalism, a federal 27 court should not interfere with ongoing state criminal proceedings except under special 28 circumstances. Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 17 1 (1971). Abstention is proper regardless of whether the applicant seeks declaratory relief, 2 injunctive relief, or damages. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) 3 (“When a state criminal prosecution has begun, the Younger rule directly bars a 4 declaratory judgment action” as well as a section 1983 action for declaratory relief and 5 damages “where such an action would have a substantially disruptive effect upon 6 ongoing state criminal proceedings.”); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 7 2004) (Younger abstention applies to actions for damages as it does to declaratory and 8 injunctive relief). Younger abstention is required when: (1) state judicial proceedings are 9 pending; (2) the state proceedings involve important state interests; and (3) the state 10 proceedings afford adequate opportunity to raise the constitutional issue. Middlesex Cnty. 11 Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Dubinka v. Judges 12 of the Super. Ct., 23 F.3d 218, 223 (9th Cir. 1994). Nothing before the Court suggests 13 that abstention is unwarranted here. 14 To the extent Plaintiff’s state criminal proceedings may have concluded, Plaintiff 15 should note that state prisoners cannot challenge the fact or duration of their confinement 16 in a § 1983 action. Their sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 17 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck 18 bar, this exception to § 1983’s otherwise broad scope applies whenever state prisoners 19 “seek to invalidate the duration of their confinement—either directly through an injunction 20 compelling speedier release or indirectly through a judicial determination that necessarily 21 implies the unlawfulness of the State's custody.” Id. at 81. “[A] state prisoner's § 1983 22 action is barred (absent prior invalidation) if success in that action would necessarily 23 demonstrate the invalidity of confinement or its duration.” Id. at 81-82; Heck v. Humphrey, 24 512 U.S. 477, 489 (1994) (until and unless favorable termination of the conviction or 25 sentence occurs, no cause of action under § 1983 exists). 26 Based on the foregoing, the Court should dismiss all claims relating to Plaintiff’s 27 state court proceedings, including Plaintiff’s requests that such proceedings be removed 28 to this Court and that his state court “counter-claim” be “lodged” in federal court. 18 1 2 9. Armstrong Remedial Plan Plaintiff raises various allegations regarding Defendants failure to issue or abide 3 by modification orders apparently required under the Armstrong remedial plan. Plaintiff 4 may not pursue any claims in this action based on an alleged violation of the Armstrong 5 remedial plan. A violation of a court order in Armstrong does not provide Plaintiff with an 6 independent claim for relief in this action. See Cagle v. Sutherland, 334 F.3d 980, 9867 87 (9th Cir. 2003) (consent decrees often go beyond constitutional minimum 8 requirements, and do not create or expand rights); Green v. McKaskle, 788 F.2d 1116, 9 1123 (5th Cir. 1986) (remedial decrees remedy constitutional violations but do not create 10 or enlarge constitutional rights). To the extent that Plaintiff wishes to seek assistance that 11 he believes is due pursuant to the Armstrong plan, plaintiff “must pursue his request via 12 the consent decree or through class counsel.” Crayton v. Terhune, No. C 98-4386 13 CRB(PR), 2002 WL 31093590, *4 (N.D. Cal. Sept. 17, 2002). Plaintiff may not sue for 14 damages in this action solely on the basis that defendants allegedly violated the remedial 15 plan. 16 17 10. Injunctive Relief In addition to his requests regarding his state court proceedings, discussed above, 18 Plaintiff seeks the following equitable relief: to be removed from state custody and placed 19 into federal custody, that Defendants be arrested and their public employment 20 terminated, and that polygraph tests be run on Defendants. 21 The federal government is not named as a defendant in this action and the Court 22 has no authority to order the federal government to assume custody of Plaintiff. Zepeda 23 v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A 24 federal court may issue an injunction if it has personal jurisdiction over the parties and 25 subject matter jurisdiction over the claim; it may not attempt to determine the rights of 26 persons not before the court.”). 27 Plaintiff’s requests that Defendants be arrested and terminated from their 28 employment are not proper requests in this action. See 18 U.S.C. § 3626(a)(1)(A). 19 1 Plaintiff’s request that Defendants be required to take polygraphs also is not a 2 proper subject of relief. If and when Defendants are served and appear in this action, 3 Plaintiff may request information from them through discovery pursuant to the Federal 4 Rules of Civil Procedure. 5 6 7 Accordingly, Plaintiff has failed to state any cognizable claims for injunctive relief. 11. Eleventh Amendment Immunity As Plaintiff already has been advised, his official capacity claims for damages 8 against the Defendants are barred by the Eleventh Amendment. See Kentucky v. 9 Graham, 473 U.S. 159, 169-70 (1985) (Eleventh Amendment immunity from damages in 10 federal court action against state remains in effect when state officials are sued for 11 damages in their official capacity). Plaintiff’s damages request against Defendants in their 12 official capacities will be dismissed. 13 Although Eleventh Amendment immunity precludes an award of damages against 14 Defendants in their official capacities, it “does not bar actions for declaratory or injunctive 15 relief brought against state officials in their official capacity.” Austin v. State Indus. Ins. 16 Sys., 939 F.2d 676, 680 (9th Cir. 1991). As stated above, Plaintiff’s requests for injunctive 17 relief are not cognizable in this action. Plaintiff's requests for declaratory relief against the 18 Defendants remains intact, as does Plaintiff's request for damages against the 19 Defendants in their individual capacities. See Hafer v. Melo, 502 U.S. 25, 31 (1991) 20 (Eleventh Amendment does not bar suits seeking to impose individual liability upon a 21 government official for actions taken under color of state law). 22 III. Conclusion 23 In sum, Plaintiff’s first amended complaint states cognizable Eighth Amendment 24 excessive force claims against Defendants Arnett, Gamboa, Potzernitz, Flores, and CO 25 Jane Doe and an Eighth Amendment failure to protect claim against Defendant Marsh. 26 The remaining claims are not cognizable as pled. 27 Accordingly, IT IS HEREBY RECOMMENDED that: 28 1. Plaintiff continue to proceed on his Eighth Amendment excessive force claim 20 1 against Defendants Arnett, Gamboa, Potzernitz, Flores, and Jane Doe; and his 2 Eighth Amendment failure to protect claim against Defendant CL Marsh; 3 2. Plaintiff’s claims against non-parties be DISMISSED without prejudice; 4 3. Claims relating to Plaintiff’s state court criminal proceedings be DISMISSED 5 without prejudice; and 6 4. All other claims and defendants be DISMISSED with prejudice. 7 These findings and recommendations will be submitted to the United States 8 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 9 § 636(b)(1). Within fourteen (14) days after being served with the findings and 10 recommendations, the parties may file written objections with the Court. The document 11 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 12 A party may respond to another party’s objections by filing a response within fourteen 13 (14) days after being served with a copy of that party’s objections. The parties are 14 advised that failure to file objections within the specified time may result in the waiver of 15 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 16 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 20 IT IS SO ORDERED. Dated: December 8, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 21

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