Riley v. Tallerico et al

Filing 53

FINDINGS and RECOMMENDATIONS recommending that that all claims and defendants be DISMISSED, except for Plaintiffs claim against Officer Yerry for violation of Plaintiffs Fourteenth Amendment rights to equal protection related to the May 16, 2015 inc ident, his claim for retaliation in violation of the First Amendment against Officers Yerry and Trotter regarding their cell search, his claim against Defendant Tallerico for retaliation in violation of the First Amendment, and his claims against Off icer Yerry for violation of the Eighth Amendment re 23 Amended Prisoner Civil Rights Complaint filed by Shannon Riley; referred to Judge Ishii,signed by Magistrate Judge Erica P. Grosjean on 12/8/17. Objections to F&R due by 12/26/2017 (Martin-Gill, S)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 SHANNON RILEY, 7 8 9 Case No. 1:16-cv-01189-AWI-EPG (PC) Plaintiff, v. TALLERICO, et al., 10 Defendants. 11 FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS CONSISTENT WITH MAGISTRATE JUDGE’S PRIOR ORDER IN LIGHT OF WILLIAMS DECISION (ECF NOS. 23 & 24) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 12 13 Shannon Riley (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 14 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff consented to magistrate 15 judge jurisdiction. 16 jurisdiction. (ECF No. 43). (ECF No. 7). Defendants declined to consent to magistrate judge 17 The Court previously screened Plaintiff’s complaint before Defendants appeared. (ECF 18 No. 24). The Court allowed the case to proceed on the following claims: Plaintiff’s claim 19 against Officer Yerry for violation of Plaintiff’s Fourteenth Amendment rights to equal 20 protection related to the May 16, 2015 incident; Plaintiff’s claim for retaliation in violation of 21 the First Amendment against Officers Yerry and Trotter regarding their search of Plaintiff’s 22 cell;1 Plaintiff’s claim against Defendant Tallerico for retaliation in violation of the First 23 Amendment; and Plaintiff’s claims against Officer Yerry for violation of the Eighth 24 Amendment. (Id.). The Court dismissed all other claims and defendants. (Id.). 25 As described below, in light of Ninth Circuit authority, this Court is recommending that 26 1 27 28 The Court notes that the screening order (ECF No. 24) erroneously stated that this claim was proceeding against Officers Dyer and Huckleberry. The Court will recommend that this claim proceed against Officers Yerry and Trotter (instead of Officers Dyer and Huckleberry), because Yerry and Trotter are the officers who allegedly conducted the cell search. 1 1 the assigned district judge dismiss claims and defendants consistent with the order by the 2 magistrate judge at the screening stage. 3 I. WILLIAMS v. KING 4 On November 9, 2017, the United States Court of Appeals for the Ninth Circuit held 5 that a magistrate judge lacked jurisdiction to dismiss a prisoner’s case for failure to state a 6 claim at the screening stage where the Plaintiff had consented to magistrate judge jurisdiction 7 and defendants had not yet been served. Williams v. King, 875 F.3d 500 (9th Cir. 2017). 8 Specifically, the Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent of all 9 plaintiffs and defendants named in the complaint—irrespective of service of process—before 10 jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court 11 would otherwise hear.” Id. at 501. 12 Here, the defendants were not served at the time the Court issued its order dismissing 13 claims and defendants, and therefore had not appeared or consented to magistrate judge 14 jurisdiction. 15 defendants based solely on Plaintiff’s consent. Accordingly, the magistrate judge lacked jurisdiction to dismiss claims and 16 In light of the holding in Williams, this Court will recommend to the assigned district 17 judge that he dismiss the claims and defendants previously dismissed by this Court, for the 18 reasons provided in the Court’s screening order. 19 II. SCREENING REQUIREMENT 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 22 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 23 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 24 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 26 been paid, the court shall dismiss the case at any time if the court determines that the action or 27 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 28 A complaint is required to contain “a short and plain statement of the claim showing 2 1 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 2 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 5 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. 6 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 7 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 8 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 9 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 10 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 11 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 12 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 13 pro se complaints should continue to be liberally construed after Iqbal). 14 III. SUMMARY OF PLAINTIFF’S THIRD AMENDED COMPLAINT 15 Plaintiff’s Third Amended Complaint begins by describing how Plaintiff filed a 16 grievance against appeals coordinator Defendant Tallerico on or around December 28, 2014, 17 alleging a violation of Plaintiff’s First Amendment rights. 18 unanswered. 19 20 The appeal was returned On or around January 13, 2015, Plaintiff and his cell mate were placed in Administrative Segregation (“Ad-Seg”) under the guise of “conspiracy to attack staff.” 21 While Plaintiff was in a holding cell prior to his Ad-Seg placement, the facility sergeant 22 presented Plaintiff with his property/inventory sheet. Plaintiff noticed a number of items were 23 missing, and informed the sergeant. 24 property you have it’s more than likely it’s in there. You really dont [sic] expect my officers to 25 document all of that stuff do you?” Plaintiff refused to sign the inventory sheet. The sergeant 26 took the inventory sheet, left the room, then came back with the sheet, which had the words 27 “Refused to sign and identify what was missing,” written on it. 28 The Sergeant responded “Oh due to the amount of In January of 2015, while still in Ad-Seg, Plaintiff was forced to sleep without a 3 1 mattress for one week. The mattress was returned only when Plaintiff refused to return his 2 food tray if he was not provided with a mattress. 3 On or around January 28, 2015, Plaintiff submitted a CDCR 22 form “request for 4 interview” to officers Dyer and Huckleberry regarding his property. Approximately four days 5 later, Officer Yerry and Officer Trotter came to Plaintiff’s cell and ordered Plaintiff to “cuff 6 up” for a cell search. Officer Yerry refused to abide by a medical chrono that stated that 7 Plaintiff required waist chains due to a medical condition (Plaintiff was medically unable to put 8 his hands behind his back). Plaintiff was nevertheless put in handcuffs with his hands behind 9 his back and left in the shower for approximately 45 minutes. Plaintiff was in unbearable pain. 10 When Plaintiff returned to his cell, he saw that his bed linen had been placed in the toilet, his 11 legal papers were scattered across the cell floor, and some of his legal papers were missing. 12 Plaintiff filed a staff complaint against Officer Yerry and Officer Trotter. Plaintiff 13 placed the complaint in the institutional mail addressed to the appeal coordinator. Plaintiff 14 never received a response. 15 On or around February 11, 2015, Plaintiff received a notice of dismissal from the 16 Northern District Court, for civil complaint no cv-13-4410. The Ninth Circuit upheld dismissal 17 of Plaintiff’s civil complaint. Plaintiff made numerous attempts to “survive” said dismissal, but 18 was unable to do so due to staff stealing and/or destroying plaintiff’s legal materials. 19 20 On or around February 18, 2015, Plaintiff received another notice of dismissal from the district court. 21 Plaintiff filed multiple appeals regarding the destruction of his legal property, but they 22 were rejected and returned. Plaintiff claims that Defendant Tallerico in particular retaliated 23 against Plaintiff by denying his legal property appeals. On or around March 23, 2015, the 24 associate warden, Mr. Arlitz, admitted that staff confiscated Plaintiff’s legal property. Plaintiff 25 filed multiple complaints against Defendant Tallerico, but they were all rejected and returned. 26 On June 12, 2015, Defendant Tallerico came to Plaintiff’s cell and told Plaintiff to be careful 27 about how Plaintiff talks to people who have access to his C-file. 28 4 1 Plaintiff’s girlfriend visited Plaintiff on or around May 16, 2015. At the conclusion of 2 the visit, Officer Yerry made racial and sexual jokes about Plaintiff. Officer Yerry made 3 Plaintiff bend over and spread his buttocks for an excessive amount of time. Officer Yerry 4 stated that he “does not understand why Mexican women like you black criminals.” Officer 5 Yerry referred to Plaintiff as being hung like a donkey. 6 7 Plaintiff alleges that he filed claims with the Government Claims Office, and that they were denied. 8 Plaintiff alleges the following causes of action: violation of his First Amendment right 9 to access the courts; violation of his Fourteenth Amendment right to equal protection; violation 10 of his First Amendment right to speech through retaliation; violation of a purported First 11 Amendment “right to read” by the theft and destruction of Plaintiff’s legal property; having a 12 custom or policy that facilitated deliberate indifference to rights of inmates; violation of his 13 Eighth Amendment right to be free from cruel and unusual punishment; and a “campaign of 14 petty harassment” in violation of the First Amendment. 15 16 IV. RIGHT TO ACCESS THE COURTS A. Legal Standards 17 Plaintiff has a constitutional right of access to the courts, and prison officials may not 18 actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th 19 Cir. 2011), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 20 (9th Cir. 2015)). The right is limited to bringing complaints to federal court in direct criminal 21 appeals, habeas petitions, and civil rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). A 22 plaintiff must show that he suffered an “actual injury,” i.e. prejudice with respect to 23 contemplated or existing litigation, such as the inability to meet a filing deadline or present a 24 non-frivolous claim. Id. at 348-49. An “actual injury” is one that hinders the plaintiff's ability 25 to pursue a legal claim. Id. at 351. 26 B. Analysis of Access to Courts Claim 27 Regarding this claim, Plaintiff alleges that he was placed in Ad-Seg in January 2015. 28 While there, he received an incomplete property inventory sheet and declined to sign it. He 5 1 alleges that Officer Yerry and Officer Trotter conducted a cell search and in the process 2 scattered Plaintiff’s legal papers across the cell floor. At some point, Plaintiff was afforded 3 limited access to his property by Ad-Seg property officer Chavez 2/w Fac-B2. 4 identified some missing items. On February 10, 2015, he filed an inmate appeal regarding the 5 theft and/or destruction of his legal material. Then, on February 11, 2015, Plaintiff received a 6 notice of dismissal from the Northern District Court, civil complaint no. 13cv4410. This 7 dismissal was upheld. Plaintiff 8 Plaintiff does not allege sufficient facts to support a constitutional violation for 9 interference with access to the courts. Although Plaintiff alleges that some property was 10 missing and a case was dismissed less than a month later, he does not connect a theft of 11 property to the dismissal of the lawsuit. In order to state such a claim, Plaintiff must allege that 12 he was improperly deprived of legal property or legal access and as a result of that deprivation 13 his case was dismissed. In other words, Plaintiff must allege the reason the court gave for 14 dismissing the case and connect that to the prison improperly depriving him of legal property or 15 access. 16 Plaintiff also alleges a violation of a purported First Amendment “right to read” by the 17 theft and destruction of Plaintiff’s legal property. The Court does not find legal support for a 18 separate First Amendment right to read separate and apart from the access to the courts claim. 19 Thus, the Court does not find a separate claim on that basis.2 20 V. EQUAL PROTECTION 21 A. Legal Standards 22 To state a § 1983 claim for violation of the Equal Protection Clause, Plaintiff must 23 “show that the defendants acted with an intent or purpose to discriminate against plaintiff based 24 on membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th 25 Cir. 2005). To state a claim under § 1981, Plaintiff must allege that he suffered intentional 26 27 28 2 Plaintiff may have a constitutional right to certain reading materials, see, e.g, Thornburgh v. Abbott, 490 U.S. 401 (1989); Beard v. Banks, 548 U.S. 521 (2006), but Plaintiff did not list a violation of this right as one of his claims, or allege facts that, if true, would show a violation of this right. 6 1 discrimination based on his race. Martin v. Ampco Sys. Parking, 2013 WL 5781311, at *14 (D. 2 Haw. Oct. 24, 2013) (citing Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir. 3 1995)); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). And to state a claim 4 under § 1985(3), Plaintiff must allege a conspiracy motivated by race or class-based 5 discriminatory animus. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 6 (1993); see Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985) (explaining that an allegation 7 of race or class-based discrimination is required to plead a § 1985(3) claim). 8 B. Analysis of Equal Protection Claim 9 Regarding this claim, Plaintiff alleges that he received a visit from his girlfriend on May 10 16, 2015. At the conclusion of the visit, Officer Yerry ordered Plaintiff to “strip-out.” Officer 11 Yerry began to make racial and sexual jokes about plaintiff. Officer Yerry forced Plaintiff to 12 bend over and spread his “buttocks.” Officer Yerry stated that he “does not understand why 13 Mexican women like you black criminals.” Officer Yerry ordered Plaintiff to continue to 14 spread his buttocks and bend over at the waist for an excessive amount of time. Officer Yerry 15 referred to Plaintiff being hung like a donkey. 16 In light of these allegations, Plaintiff has stated a claim that Officer Yerry violated 17 Plaintiff’s Fourteenth Amendment rights to equal protection related to the May 16, 2015 18 incident. 19 Plaintiff also alleges that other defendants violated his equal protection rights by 20 stealing and destroying his legal property, and refusing to process his appeals. However, the 21 Court finds that Plaintiff has not stated any other equal protection claims because Plaintiff’s 22 allegations, even if true and construed in favor of Plaintiff, do not establish that any of the other 23 defendants’ actions were done on account of Plaintiff’s race. 24 VI. 25 RETALIATION IN VIOLATION OF THE FIRST AMENDMENT A. Legal Standards 26 Prisoners have a First Amendment right to file prison grievances. Bruce v. Ylst, 351 27 F.3d 1283, 1288 (9th Cir.2003). There are five basic elements to a First Amendment retaliation 28 claim: 7 1 2 (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 3 4 Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.2005). B. Analysis of Plaintiff’s Retaliation Claim 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that four days after he filed a request for interview form (which was filed January 28, 2015) to Officers Dyer and Huckleberry regarding missing property, Officers Yerry and Officer Trotter searched his cell. As part of the search, Officers Yerry and Trotter put Plaintiff’s bed linen in the toilet and scattered Plaintiff’s legal papers across the floor. Plaintiff has stated a claim for retaliation in violation of the First Amendment against Officers Yerry and Trotter regarding this search. Although there are not allegations establishing a direct connection between the filing of grievances and the search, the proximity in time combined with the conduct of the search are sufficient to draw an inference that the search was done in retaliation, at least for the purposes of proceeding on the claim. Separately, Plaintiff alleges that he filed multiple grievances against Defendant Tallerico, which Defendant Tallerico himself improperly cancelled. Plaintiff alleges that on June 12, 2015, Defendant Tallerico threatened plaintiff “to be careful about how plaintiff talk to people who has access to their C-file.” Based on these allegations, the Court finds that Plaintiff has sufficiently stated a claim against Defendant Tallerico for retaliation in violation of the First Amendment. Although Plaintiff also alleges retaliation by various defendants based on improperly denying or cancelling Plaintiff’s grievances, and harassment, the Court does not find a constitutional claim based on these allegations. Plaintiff has not alleged any facts that would show that these actions were taken because Plaintiff engaged in protected conduct. VII. CUSTOM AND POLICY OF DELIBERATE INDIFFERENCE A. Legal Standards Defendants may be liable under § 1983 if they “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the 8 1 constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal 2 citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To establish liability 3 based on a policy, a plaintiff must identify a specific policy and establish a “direct causal link” 4 between that policy and the alleged constitutional deprivation. See City of Canton, Ohio v. 5 Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). 6 B. Analysis of Unconstitutional Custom or Practice 7 The Court has evaluated the individual claims as alleged, but finds that Plaintiff has not 8 alleged sufficient facts to show that there was a custom or policy that led to the alleged 9 violation of Plaintiff’s constitutional rights. 10 11 12 13 Although Plaintiff also alleges a “campaign of petty harassment,” this is not a legal claim separate and apart from the law cited above and elsewhere in this order. VIII. EIGHTH AMENDMENT CRUEL AND UNUSUAL PUNISHMENT A. Eighth Amendment 14 The Eighth Amendment protects prisoners from inhumane methods of punishment and 15 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 16 Cir. 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 17 Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) 18 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials 19 must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal 20 safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted). For claims of 21 excessive physical force, the issue is “whether force was applied in a good-faith effort to 22 maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 23 U.S. at 7. Although de minimis uses of force do not violate the Constitution, the malicious and 24 sadistic use of force to cause harm always violates the Eighth Amendment, regardless of 25 whether or not significant injury is evident. Hudson, 503 U.S. at 9-10; Oliver v. Keller, 289 26 F.3d 623, 628 (9th Cir. 2002). 27 28 B. Analysis of Eighth Amendment Claim Plaintiff alleges that he has a medical condition that prevents him from safely placing 9 1 his hands behind his back, and that he had a medical chrono as evidence of this. Nevertheless, 2 Plaintiff alleges that Officer Yerry required him to “cuff-up” by putting his hands behind his 3 back during a cell search in February, 2015. 4 overwhelming pain in his back, right arm, and neck. Plaintiff was left in that manner in a 5 shower for approximately 45 minutes. Plaintiff’s pain became so unbearable that he yelled and 6 screamed, demanding to be uncuffed. These allegations, construed in Plaintiff’s favor at this stage of the case, sufficiently 7 8 Plaintiff immediately began to experience state an Eighth Amendment claim against Officer Yerry. 9 Plaintiff also alleges that Officer Yerry’s search of Plaintiff, which included forcing 10 Plaintiff to bend over for extended periods of time with buttocks spread, violated Plaintiff’s 11 constitutional rights. The Court is not making a legal finding at this stage regarding whether 12 this conduct would violate the Eighth Amendment, but will allow the claim to go forward at 13 this time for further factual investigation and legal analysis including input from all parties 14 involved. 15 IX. CONCLUSION AND RECOMMENDATIONS 16 For the foregoing reasons, IT IS HEREBY RECOMMENDED that all claims and 17 defendants be DISMISSED, except for Plaintiff’s claim against Officer Yerry for violation of 18 Plaintiff’s Fourteenth Amendment rights to equal protection related to the May 16, 2015 19 incident, his claim for retaliation in violation of the First Amendment against Officers Yerry 20 and Trotter regarding their cell search,3 his claim against Defendant Tallerico for retaliation in 21 violation of the First Amendment, and his claims against Officer Yerry for violation of the 22 Eighth Amendment. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these findings and recommendations, any party may file 26 written objections with the court. Such a document should be captioned “Objections to 27 3 28 As noted above, the screening order (ECF No. 24) erroneously stated that this claim was proceeding against Officers Dyer and Huckleberry. 10 1 Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be 2 served and filed within seven (7) days after service of the objections. The parties are advised 3 that failure to file objections within the specified time may result in the waiver of rights on 4 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 5 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 IT IS SO ORDERED. Dated: December 8, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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