Sahibi v. Gonzales. et al.

Filing 132

FINDINGS and RECOMMENDATIONS to dismiss non-cognizable state law claims re 1 signed by Magistrate Judge Michael J. Seng on 12/1/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OUSSAMA SAHIBI,

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CASE NO. 1:15-cv-01581-LJO-MJS (PC)

Plaintiff,
v.
BORJAS GONZALES, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
TO DISMISS NON-COGNIZABLE STATE
LAW CLAIMS
(ECF No. 1)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate

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Judge jurisdiction. (ECF No. 5.) Defendants have declined to consent to Magistrate

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Judge jurisdiction. (ECF Nos. 20, 25.)

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On February 10, 2015, the then-assigned Magistrate Judge screened Plaintiff’s

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complaint and concluded that it states a cognizable Eighth Amendment excessive force

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claim against Defendants Brandon Cope, Borjas Gonzales, Mario Lozano, Howard

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Smith, and Stan, and a Fourteenth Amendment due process claim against Defendant

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Crounse. Plaintiff’s state law claims were found non-cognizable. (ECF No. 6.) Plaintiff

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was given the opportunity to file an amended complaint or proceed only on the

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cognizable claim. (Id.) Plaintiff chose to proceed (ECF No. 8), and the Magistrate Judge

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dismissed the state law claims for failure to state a claim (ECF No. 9).

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The matter since has proceed through discovery, a motion for judgment on the

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pleadings, a motion for summary judgment for failure to exhaust as to Defendant

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Crounse, a motion for summary judgment on the merits as to Defendant Crounse, and

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an unsuccessful settlement conference. It presently is set for a trial on June 26, 2018.

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(ECF No. 73.)

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I.

Williams v. King

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Federal courts are under a continuing duty to confirm their jurisdictional power

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and are “obliged to inquire sua sponte whenever a doubt arises as to [its] existence[.]”

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Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations

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omitted). On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C.

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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not

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served with process, before jurisdiction may vest in a Magistrate Judge to dispose of a

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civil claim. Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court held

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that a Magistrate Judge does not have jurisdiction to dismiss a claim with prejudice

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during screening even if the plaintiff has consented to Magistrate Judge jurisdiction. Id.

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Here, Defendants were not yet served at the time that the Court screened the

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complaint and they therefore had not appeared or consented to Magistrate Judge

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jurisdiction. Because the Defendants had not consented, the Magistrate Judge’s

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dismissal of Plaintiff’s claims is invalid under Williams. Because the undersigned

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nevertheless agrees with the analysis in the screening order, he will below recommend

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to the District Judge that the non-cognizable state law claims be dismissed.

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II.

Findings and Recommendations on Complaint

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A.

Screening Requirement

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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

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

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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B.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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

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

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

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.
Plaintiff’s Allegations

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C.

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Plaintiff complains of acts that occurred at Kern Valley State Prison (“KVSP”) and

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California Correctional Institution (“CCI”).

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Plaintiff is a practicing Muslim and was observing Ramadan in July 2013.

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On July 9, 2013, Defendant Gonzales stopped at Plaintiff’s cell and asked if he

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would be eating dinner. Plaintiff said that he was fasting for Ramadan. Defendant

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Gonzales asked him if he was serious, and if he was “some kind of towelhead or

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something.” ECF No. 1, at 6. Plaintiff ignored the comment.

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On July 12, 2013, Defendant Gonzales stopped at Plaintiff’s cell again and asked

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if he was still fasting. Plaintiff said that he was, and Defendant Gonzales laughed and

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repeated his ‘towelhead’ comment. Plaintiff asked him to keep his racist comments to

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himself, or he’d file a staff complaint. Defendant Gonzales became angry and said,

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“You’re not going to do shit you fucking terrorist. Nobody cares about a staff complaint.”

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ECF No. 1, at 6.

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On July 13, 2013, Plaintiff’s cell was skipped when inmates were being released

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for Ramadan services. Plaintiff yelled out to the control booth officer that he had been

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skipped. Plaintiff saw that Defendant Gonzales was in the control booth, laughing with

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the control booth officer. The control booth officer implied that Defendant Gonzales was

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responsible for not releasing Plaintiff.

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Plaintiff was released ten minutes later. Defendant Gonzales opened the control

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booth window and yelled, “Why you crying for towelhead?” ECF No. 1, at 6. Plaintiff said

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that he would be filing a staff complaint and exited the building.

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As he exited and headed towards the chapel, Defendant Gonzales and his

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partner, Officer Perez, came down from the control booth. Defendant Gonzales ordered

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Plaintiff to stop and get his “terrorist ass” back and say that to his face. ECF No. 1, at 7.

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Plaintiff placed his hands on the wall in an attempt to diffuse the situation, as

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Defendant Gonzales was becoming aggressive. Defendant Gonzales ordered Plaintiff to

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put his arms behind his back. When Plaintiff did so, Defendant Gonzales yanked it up

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and forcefully shoved Plaintiff’s face into the wall. Plaintiff turned around and began to

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physically defend himself.

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Plaintiff was immediately subdued by Officers Dewery, Gonzales and Perez. He

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was repeatedly hit in the face, pepper-sprayed, tackled to the ground and placed in

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handcuffs.

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While Plaintiff was face down on the ground and in handcuffs, Defendant

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Gonzales and other officers held Plaintiff down while Defendant Smith began striking

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Plaintiff with his baton, ultimately breaking his left leg.

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Plaintiff was then placed in leg restraints, turned onto his back and held down

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while

Defendant

Gonzales

beat

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and

punched

Plaintiff

into

“momentary

unconsciousness.” ECF No. 1, at 7.

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Plaintiff was forced up onto his feet while he screamed that he leg was broken

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and that he could not walk. Officer Diaz said, “well, we’ll drag your ass, then.” ECF No. 1,

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at 8. Plaintiff was ultimately dragged one hundred yards and denied immediate medical

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treatment. He was told he had to be cleared by the IGI unit first.

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Defendants Stan, Lozano and Cope arrived with a wheelchair, and restrained

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Plaintiff and placed him in it. They took Plaintiff to a back room, and as soon as the door

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closed, Defendant Stan began striking Plaintiff in the back of his head and ear while

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Defendants Lozano and Cope punched him in the face. Plaintiff was knocked

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unconscious and needed stiches. Defendant Stan told Plaintiff, “you bleed like a bitch.”

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ECF No. 1, at 8.

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After the beating, Defendant Cope told Plaintiff that they were going to do a video

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interview. He threatened Plaintiff not to say “shit” or they’d come find him, validate him,

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and make his life a living hell. ECF No. 1, at 8.

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Sometime later, Plaintiff received medical treatment and was taken by ambulance

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to the Delano Regional Medical Center. He received stitches on his face and had an x-

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ray that revealed a broken left fibula that was protruding through his skin.

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On July 15, 2013, Plaintiff underwent surgery to repair his leg at San Joaquin
Community Hospital.
On July 22, 2013, upon returning from the hospital, Plaintiff was placed in Ad-Seg.
He was served with a Rules Violation Report for assaulting staff.
On August 27, 2013, Plaintiff was transferred to CCI Ad-Seg without a disciplinary
hearing.

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On November 14, 2013, Plaintiff appeared before Defendant Crounse for his

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disciplinary hearing. He asked Defendant Crounse to call Defendants Gonzales, Smith,

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Stan, Cope and Lozano. Defendant Crounse told Plaintiff that he would not be calling

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anyone, “as staff reports gave a full account of the incident.” ECF No. 1, at 9. Plaintiff

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pointed out that Defendant Gonzales’ report was missing, which was critical as he was

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the primary officer. Plaintiff was ignored and subsequently found guilty without being

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afforded a meaningful hearing.

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Based on these facts, Plaintiff alleges a violation of the Eighth and Fourteenth
Amendments, as well as assault and battery under California law.
D.

Analysis
1.

Eighth Amendment- Excessive Force

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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, 112

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S.Ct. 995 (1992) (citations omitted). For claims arising out of the use of excessive

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physical force, the issue is “whether force was applied in a good-faith effort to maintain

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or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy,

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559 U.S. 34, 37, 130 S.Ct. 1175, 1178 (2010) (per curiam) (citing Hudson, 503 U.S. at 7)

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(internal quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir.

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2013). The objective component of an Eighth Amendment claim is contextual and

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responsive to contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation

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marks and citation omitted), and although de minimis uses of force do not violate the

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Constitution, the malicious and sadistic use of force to cause harm always violates

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contemporary standards of decency, regardless of whether or not significant injury is

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evident, Wilkins, 559 U.S. at 37-8, 130 S.Ct. at 1178 (citing Hudson, 503 U.S. at 9-10)

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(quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).

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Plaintiff states an Eighth Amendment claim against Defendants Gonzales, Smith,

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Cope, Lozano and Stan based on events occurring after Plaintiff was placed in

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handcuffs.

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2.

Fourteenth Amendment- Due Process

“Prison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.”

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McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). With respect to prison disciplinary

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proceedings, the minimum procedural requirements that must be met are: (1) written

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notice of the charges; (2) at least 24 hours between the time the prisoner receives

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written notice and the time of the hearing, so that the prisoner may prepare his defense;

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(3) a written statement by the fact finders of the evidence they rely on and reasons for

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taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense,

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when permitting him to do so would not be unduly hazardous to institutional safety or

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correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate

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or the issues presented are legally complex. Id. at 563-71. As long as the five minimum

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Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d

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1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S.

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472 (1995).

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Wolff v.

Plaintiff states a due process claim against Defendant Crounse based on the
denial of his right to call witnesses at his disciplinary hearing.

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3.

State Law Claim- Assault and Battery

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The Government Claims Act (“Act”) requires that a party seeking to recover

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money damages from a public entity or its employees submit a claim to the entity before

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filing suit in court, generally no later than six months after the cause of action accrues.

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Cal. Gov’t Code §§ 905, 911.2, 945, 950.2 (emphasis added). Timely claim presentation

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is not merely a procedural requirement of the Act, but is an element of a plaintiff’s cause

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of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). Thus, when a

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plaintiff asserts a claim subject to the Act, he must affirmatively allege compliance with

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the claim presentation procedure, or circumstances excusing such compliance, in his

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complaint. Id.

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Here, although Plaintiff alleges that he filed staff complaints and an appeal related

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to his disciplinary hearing, he does not allege compliance with the Act. While he may

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ultimately be able to state an assault and battery claim, he must affirmatively allege

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compliance with the Act before he can proceed.

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Plaintiff therefore fails to state a claim for assault and battery.
III.

Conclusion and Recommendation

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In sum, Plaintiff’s complaint states a cognizable Eighth Amendment excessive

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force claim against Defendants Brandon Cope, Borjas Gonzales, Mario Lozano, Howard

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Smith, and Stan, and a Fourteenth Amendment due process claim against Defendant

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Crounse. The matter should continue to proceed only on these claims.

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Plaintiff’s state law claims are not cognizable as pled. Plaintiff was afforded the

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opportunity to amend these claims to cure noted defects, but he declined. Therefore, it is

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HEREBY RECOMMENDED that the state law claims be dismissed with prejudice.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.

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§ 636(b)(1). Within fourteen (14) days after being served with the findings and

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recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

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A party may respond to another party’s objections by filing a response within fourteen

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(14) days after being served with a copy of that party’s objections. The parties are

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

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

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

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IT IS SO ORDERED.
Dated:

December 1, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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