Alarcon v. Davey et al
Filing
16
FINDINGS and RECOMMENDATIONS recommending that Plaintiff Proceed on 14 First Amended Complaint, but that Warden Davey, All Claims Against Davey, and All Claims Under California Law be DISMISSED signed by Magistrate Judge Jennifer L. Thurston on 3/14/2018. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
LOUIS A. ALARCON,
12
Plaintiff,
13
14
v.
D. DAVEY, et al.,
15
Defendants.
Case No. 1:16-cv-01461-JLT (PC)
FINDINGS AND RECOMMENDATION
FOR PLAINTIFF TO PROCEED ON
FIRST AMENDED COMPLAINT but
THAT WARDEN DAVEY, ALL CLAIMS
AGAINST DAVEY, AND ALL CLAIMS
UNDER CALIFORNIA LAW BE
DISMISSED
16
(Doc. 14)
17
21 DAY DEADLINE
18
Plaintiff, who is currently housed at Salinas Valley State Prison, complains of events that
19
20
occurred while he was housed at CSP-Cor. The Court dismissed the complaint with leave to
21
amend for violation of Rule 8 of the Federal Rules of Civil Procedure. Plaintiff then filed the
22
First Amended Complaint, which is before the Court for screening. (Doc. 14.) For the reasons
23
discussed below, the Court recommends that Plaintiff be allowed to proceed on the First
24
Amended Complaint on his claims under the Eight Amendment against correctional staff as
25
discussed herein. However, Warden D. Davey and all claims against him should be dismissed
26
since they are not cognizable, and all claims under California law should be dismissed since
27
Plaintiff fails to show compliance with the California Government Claims Act.
28
///
1
1
B.
Screening Requirement
2
The Court is required to screen complaints brought by prisoners seeking relief against a
3
governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
4
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
5
legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
6
that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
7
§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been
8
paid, the court shall dismiss the case at any time if the court determines that . . . the action or
9
appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
10
C.
Summary of the First Amended Complaint
11
Though currently housed at SVSP, Plaintiff seeks to pursue this action based on events
12
that took place in 2015 while he was housed at CSP-Cor. Plaintiff names the following as
13
Defendants: Warden D. Davey; Lieutenant J. Gonzales; Sergeant E. Magallanes; Correctional
14
Officers J. Caldwell, H. Flores, S. Longoria, R. Guerra, R. Roque, A. Casas, D. Nora, A.
15
Fernandez, K. Cowart, A. Rocha, T. Harris, M. Garin, R. Adame; and LVN S. Bransom. Plaintiff
16
seeks monetary damages as well as declaratory and injunctive relief based on violation of his
17
rights under the Eighth Amendment and various claims under California law.
18
Plaintiff’s allegations are all premised on an incident that occurred on January 30, 2015.
19
On that date, Plaintiff alleges that C/O Caldwell told Plaintiff and three other inmates to leave
20
shortly after they sat down in the dining hall to eat their evening meal. (Doc. 14, p. 12.) Plaintiff
21
questioned this direction and cursed because it was obvious they were still eating. (Id.) C/O
22
Caldwell got Plaintiff’s ID and said “Alright, we’ll see about this.” (Id.) As Plaintiff emptied his
23
tray by the scullery, he saw C/O Caldwell looking at him and slipping on his black gloves while
24
menacingly shaking his head up and down at Plaintiff. (Id., pp. 12-13.)
25
After Plaintiff and his friends left, C/O Caldwell was a few feet to the left of the exit door
26
and told Plaintiff a couple times to “Come here and turn around.” (Id., p. 13.) Plaintiff responded
27
both times by asking why. (Id.) Suddenly, Lt. Gonzales pushed Plaintiff violently from behind
28
2
1
into C/O Caldwell, who grabbed Plaintiff in a head lock and pulled him to the ground. (Id.) Lt.
2
Gonzales repeatedly hit the inside of Plaintiff’s elbow and the back of his left arm with his baton
3
until his arm went limp. (Id.) Plaintiff didn’t resist during this incident, but C/O H. Flores
4
pepper-sprayed him in the face anyway. (Id.) While Plaintiff was on the ground, C/O S.
5
Longoria slammed his knee into Plaintiff’s lower back a couple times and then cuffed him,
6
pulling his limp left arm and right arm behind Plaintiff despite the fact that Plaintiff has a medical
7
chrono indicating that he is not to be cuffed behind his back. (Id. pp. 13-14.) C/O Caldwell then
8
released Plaintiff from the headlock and began a forceful jumping motion, repeatedly pushing
9
Plaintiff’s head into the asphalt. (Id., p. 14.) Someone then grabbed Plaintiff’s right ankle and
10
twisted it until it broke and ripped with a “crack.” (Id.) Lt. Gonzales then began to hit Plaintiff’s
11
left ankle with his baton. (Id.) C/Os L. Cahlander, R. Roque, K. Cowart, T. Harris, A.
12
Fernandez, R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha simply stood by watching and
13
took no actions to stop what was happening. (Id., p. 15.)
14
Plaintiff was eventually pulled by his elbows and told to get up and walk. Plaintiff told
15
C/Os Longoria, R. Guerra, and Lt. J. Gonzales, who were trying to make him walk, that he could
16
not as both of his feet were badly injured or broken and that he had a medical chrono restricting
17
him from being cuffed behind his back. (Id.) Lt. J. Gonzales told S. Longoria and R. Guerra to
18
try to make Plaintiff walk, so that when he presented to medical staff they would note him as
19
ambulatory on arrival. (Id.) C/Os Longoria, R. Guerra, and Lt. J. Gonzales could tell that
20
Plaintiff was in pain and suffering, but forced him into the stand-up cage in 3A medical without
21
ventilation, ignoring Plaintiff’s cry that he could not breathe and was not supposed to be cuffed
22
behind his back. (Id.) They did not decontaminate him from the pepper-spray but simply
23
laughed at Plaintiff and left. (Id., pp. 15-16.)
24
LVN S. Branson saw Plaintiff, but did not examine him, provide him aid, or report his
25
injuries. (Id., p. 16.) Plaintiff asked LVN S. Branson for help and told her that he was having
26
trouble breathing and talking because of the pepper spray, that his foot was hurting and he
27
thought it was broken, that his elbow, back and face were hurting badly, and that he had a medical
28
3
1
chrono prohibiting being cuffed behind his back. (Id.) Instead of sending Plaintiff to the
2
Correctional Treatment Center (CTC) for medical care and treatment, LVN S. Branson simply
3
cleared Plaintiff for ad-seg placement. (Id.) On the medical report for injury, LVN S. Branson
4
only vaguely reported that Plaintiff had pain all over his body and falsely reported that Plaintiff
5
refused decontamination. (Id., p. 17.)
6
After that, Sgt. Magallanes arrived at 3A medical with C/Os R. Roque, A. Casas, and D.
7
Nora. (Id.) Sgt. Magallanes ordered Plaintiff to stand, but Plaintiff replied he could not because
8
of excruciating pain in both of his feet, that he was not supposed to be cuffed in the back, and that
9
he needed to be decontaminated. (Id.) Sgt. Magallanes said that if Plaintiff couldn’t stand, they
10
would drag him to 3A-O3, which was approximately 100 yards from 3A medical. (Id.) Plaintiff
11
requested a wheel-chair which Sgt. Magallanes refused, ordering Plaintiff to stand. (Id.) Crying,
12
Plaintiff told Sgt. Magallanes that he could not walk because of the pain in his feet and begged
13
them not to drag him or make him walk to 3A-O3. (Id.) Despite this, Sgt. Mallaganes ordered
14
C/Os A. Cesas, R. Roque and D. Nora to grab Plaintiff. (Id.) Then Sgt. Mallaganes and C/O
15
Roque took hold of Plaintiff’s elbows while C/Os Cesas and Nora grabbed his feet and the four of
16
them began carrying Plaintiff, dropped him, and then half-carried half-dragged Plaintiff to 3A-
17
O3. (Id., p. 18.) Plaintiff pleaded with Sgt. Magallanes for them to stop, but he just threatened
18
and berated Plaintiff. (Id.) Plaintiff was then placed in a non-ad-seg building in what Plaintiff
19
believes was an effort to hide his injuries. (Id.)
20
Once housed in a cell in 3A-O3, Plaintiff and inmates in cells around him screamed and
21
called for nurses to attend to Plaintiff’s injuries. (Id.) After about 2-1/2 hours, an unknown
22
“psyche tech” arrived, examined Plaintiff, and directed that Plaintiff be taken to the CTC in a
23
wheelchair. (Id.) Once there, Plaintiff was examined, decontaminated, and given a large dose of
24
pain medications. (Id.) Dr. Aye saw Plaintiff and ordered Plaintiff’s transport to Mercy Hospital
25
where his fractured ankle was examined, identified, and placed in a cast and his other injuries
26
were examined and treated. (Id., pp. 18-19.) Plaintiff remained in the hospital for three days
27
until February 3, 2015, when he was released back to CSP-Cor. (Id., p. 19.)
28
4
1
Plaintiff was previously given the applicable standards for his claims. For the reasons
2
discussed below, Plaintiff has stated some cognizable claims under the Eighth Amendment upon
3
which he should be allowed to proceed. However, it appears that Plaintiff is unable to cure the
4
deficiencies of his claim against Warden D. Davey such that he and all claims against him should
5
be dismissed and that Plaintiff did not comply with the CGCS to proceed on any claims under
6
California law in this action. .
7
8
D.
Pleading Requirements
1.
Federal Rule of Civil Procedure 8(a)
9
“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
10
exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534
11
U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain
12
statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).
13
“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and
14
the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.
15
Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs
16
when a pleading says too little -- the baseline threshold of factual and legal allegations required
17
was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
18
(2009). The Rule is also violated, though, when a pleading says too much. Cafasso, U.S. ex rel.
19
v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e have never held --
20
and we know of no authority supporting the proposition -- that a pleading may be of unlimited
21
length and opacity. Our cases instruct otherwise.”) (citing cases); see also McHenry v. Renne, 84
22
F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, and recognizing that
23
“[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens
24
on litigants and judges”).
25
Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
26
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
27
U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
28
5
1
Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is
2
plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual
3
allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.
4
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
5
While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,
6
580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally
7
and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
8
However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,”
9
Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights
10
complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.
11
Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,
12
673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,
13
Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and
14
citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,
15
and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the
16
plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
17
18
2.
Linkage and Causation
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
19
other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
20
1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
21
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of
22
substantive rights, but merely provides a method for vindicating federal rights elsewhere
23
conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)
24
(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation
25
marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,
26
or causal connection, between each defendant’s actions or omissions and a violation of his federal
27
rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);
28
6
1
Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
2
Plaintiff’s allegations must demonstrate that each defendant personally participated in the
3
deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the
4
presentation of factual allegations sufficient to state a plausible claim for relief against each
5
defendant. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
6
2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal,
7
556 U.S. at 678; Moss, 572 F.3d at 969. However, prisoners proceeding pro se in civil rights
8
actions are still entitled to have their pleadings liberally construed and to have any doubt resolved
9
in their favor. Hebbe, 627 F.3d at 342.
10
11
12
E.
Legal Standards
1.
Excessive Force
The Eighth Amendment prohibits those who operate our prisons from using “excessive
13
physical force against inmates.” Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682
14
F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have “a duty to take reasonable steps to
15
protect inmates from physical abuse”); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th
16
Cir.1988), cert. denied, 490 U.S. 1012 (1989) (“prison administrators” indifference to brutal
17
behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim”). As
18
courts have succinctly observed, “[p]ersons are sent to prison as punishment, not for
19
punishment.” Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted), aff=d,
20
973 F.2d 686 (8th Cir.1992). ABeing violently assaulted in prison is simply not >part of the
21
penalty that criminal offenders pay for their offenses against society.=@ Farmer, 511 U.S. at 834,
22
(quoting Rhodes, 452 U.S. at 347).
23
When a prison official stands accused of using excessive physical force in violation of the
24
cruel and unusual punishment clause of the Eighth Amendment, the question turns on Awhether
25
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
26
sadistically for the purpose of causing harm.@ Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing
27
Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was
28
7
1
wanton and unnecessary, it is proper to consider factors such as the need for application of force,
2
the relationship between the need and the amount of force used, the threat reasonably perceived
3
by the responsible officials, and any efforts made to temper the severity of the forceful response.
4
Hudson, 503 U.S. at 7. The extent of a prisoner=s injury is also a factor that may suggest whether
5
the use of force could plausibly have been thought necessary in a particular situation. Id.
6
Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not
7
determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel
8
and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9.
9
Plaintiff’s allegations against C/O Caldwell, Lt. Gonzales, C/O H. Flores, and C/O S.
10
Longoria for attacking him just after he exited the chow hall without provocation and without any
11
resistance by Plaintiff (Doc. 14, pp. 13-14), state a claim for excessive force claim under the
12
Eighth Amendment. Further, Plaintiff’s allegations that C/Os L. Cahlander, R. Roque, K.
13
Cowart, T. Harris, A. Fernandez, R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha simply
14
stood by watching and took no actions to stop what was happening (id., p. 15) are cognizable for
15
failing “to take reasonable measures to guarantee the safety of inmates, which has been
16
interpreted to include a duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714
17
F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d
18
1036, 1040 (9th Cir. 2005)); see also Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir.
19
2003); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); Robins v. Meecham, 60 F.3d
20
1436, 1442 (9th Cir. 1995).
21
However, verbal harassment or abuse alone is not sufficient to state a claim under section
22
1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even threats do not rise to the
23
level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Thus, none
24
of the threats or profanity that Plaintiff alleges various of the defendants used against him amount
25
to cognizable claims.
26
27
2.
Deliberate Indifference to Serious Medical Needs
Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
28
8
1
prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need
2
is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton
3
infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,
4
439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
5
Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
6
Cir.1997) (en banc))
7
To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must
8
first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition
9
could result in further significant injury or the unnecessary and wanton infliction of pain. Second,
10
the plaintiff must show the defendants= response to the need was deliberately indifferent.”
11
Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091,
12
1096 (9th Cir. 2006) (quotation marks omitted)).
13
“Indications that a plaintiff has a serious medical need include the existence of an injury
14
that a reasonable doctor or patient would find important and worthy of comment or treatment; the
15
presence of a medical condition that significantly affects an individual’s daily activities; or the
16
existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.
17
2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113,
18
1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For purposes here, the
19
Court accepts that Plaintiff’s condition after being beaten upon exiting the dining hall is a serious
20
medical need.
21
Deliberate indifference is “a state of mind more blameworthy than negligence” and
22
“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v.
23
Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is
24
shown where a prison official “knows that inmates face a substantial risk of serious harm and
25
disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate
26
indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).
27
“Under this standard, the prison official must not only ‘be aware of the facts from which the
28
9
1
inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also
2
draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison official should
3
have been aware of the risk, but was not, then the official has not violated the Eighth
4
Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada,
5
290 F.3d 1175, 1188 (9th Cir. 2002)).
6
In medical cases, this requires showing: (a) a purposeful act or failure to respond to a
7
prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680
8
F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference “may
9
appear when prison officials deny, delay or intentionally interfere with medical treatment, or it
10
may be shown by the way in which prison physicians provide medical care.” Id. (internal
11
quotation marks omitted). Under Jett, “[a] prisoner need not show his harm was substantial.” Id.;
12
see also McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant’s activities resulted in
13
‘substantial’ harm to the prisoner is not necessary.”).
14
The alleged efforts by C/Os Longoria, R. Guerra, and Lt. J. Gonzales to force Plaintiff to
15
walk to 3A medical, despite his obvious injuries and the pain that it caused him, merely to be
16
noted as “ambulatory” upon arrival, violate the Eight Amendment for deliberate indifference to
17
Plaintiff’s serious medical needs and/or risk of serious harm. Plaintiff’s allegations that these
18
three defendants merely laughed at him and walked away when he cried to them to be
19
decontaminated, that he could not breathe, and was not supposed to be cuffed behind his back are
20
likewise cognizable.
21
Plaintiff’s allegations against LVN S. Branson state a cognizable Eighth Amendment
22
claim as well for not examining Plaintiff, providing him aid, or reporting his injuries, for ignoring
23
Plaintiff’s requests for help when he informed her that he was having trouble breathing and
24
talking because of the pepper spray, that his foot was hurting and he thought it was broken, his
25
elbow was hurting badly as were his back and face, and that he had a medical chrono prohibiting
26
being cuffed behind his back. Instead of sending Plaintiff to the Correctional Treatment Center
27
(CTC) for medical care and treatment, LVN S. Branson simply cleared Plaintiff for ad-seg
28
10
1
placement and only vaguely noted that Plaintiff had pain all over his body and falsely reported
2
that Plaintiff refused decontamination.
3
Plaintiff’s allegations against Sgt. Magallanes and C/Os A. Casas, R. Roque, and D. Nora
4
for carrying Plaintiff by his elbows and feet, dropping him, and then half-carrying half-dragging
5
Plaintiff instead of using a wheelchair to take him to 3A-O3 when Plaintiff had advised them of
6
everywhere he was hurting and his inability to stand, let alone walk, also states a cognizable
7
claim under the Eighth Amendment.
8
9
3.
Failure to Train/Supervise
Plaintiff’s allegations that Warden Davey is liable for failing to adequately train and
10
supervise his subordinates which amounted to a failure to protect Plaintiff under the Eight
11
Amendment are not cognizable.
12
Generally, supervisory personnel are not liable under section 1983 for the actions of their
13
employees under a theory of respondeat superior, Iqbal, 129 S.Ct. at 1949. When a named
14
defendant holds a supervisory position, the causal link between him and the claimed
15
constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th
16
Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941
17
(1979). To show this, “a plaintiff must show the supervisor breached a duty to plaintiff which
18
was the proximate cause of the injury. The law clearly allows actions against supervisors under
19
section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived
20
under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435,
21
1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v.
22
Brennan, 511 U.S. 825 (1994).
23
To state a claim for relief under this theory, Plaintiff must allege some facts that would
24
support a claim that supervisory defendants either: personally participated in the alleged
25
deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or
26
promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of
27
constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black,
28
11
1
885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045
2
(9th Cir. 1989).
3
“The requisite causal connection can be established . . . by setting in motion a series of
4
acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly
5
refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably
6
should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.
7
of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001). “A supervisor can be liable in his individual
8
capacity for his own culpable action or inaction in the training, supervision, or control of his
9
subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a
10
reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d
11
1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted).
Although federal pleading standards are broad, some facts must be alleged to support
12
13
claims under section 1983. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168
14
(1993). General statements that a supervisor failed to train or supervise their subordinates are
15
legal conclusions that need not be accepted as true. Iqbal, 556 U.S. at 678. Thus, Plaintiff’s mere
16
allegations that Warden Davey’s failure to train, supervise, and discipline prison personnel
17
amounted to a failure to protect Plaintiff in violation of the Eighth Amendment is not cognizable.
4.
18
Claims Under California Law
19
Under California’s Government Claims Act (“CGCA”),1 set forth in California
20
Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages
21
against a public employee or entity unless the plaintiff first presented the claim to the California
22
Victim Compensation and Government Claims Board, and the Board acted on the claim, or the
23
time for doing so expired. “The Tort Claims Act requires that any civil complaint for money or
24
damages first be presented to and rejected by the pertinent public entity.” Munoz v. California,
25
33 Cal.App.4th 1767, 1776 (1995). The purpose of this requirement is “to provide the public
26
entity sufficient information to enable it to adequately investigate claims and to settle them, if
27
1
28
The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior
Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than
California Tort Claims Act).
12
1
appropriate, without the expense of litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447,
2
455 (1974) (citations omitted), and “to confine potential governmental liability to rigidly
3
delineated circumstances: immunity is waived only if the various requirements of the Act are
4
satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111,
5
1125 (9th Cir. 2013). Compliance with this “claim presentation requirement” constitutes an
6
element of a cause of action for damages against a public entity or official. State v. Superior
7
Court (Bodde), 32 Cal.4th 1234, 1244 (2004). Thus, in the state courts, “failure to allege facts
8
demonstrating or excusing compliance with the claim presentation requirement subjects a claim
9
against a public entity to a demurrer for failure to state a cause of action.” Id. at 1239
10
(fn.omitted).
11
To be timely, a claim must be presented to the Board “not later than six months after the
12
accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, Aany suit brought against a
13
public entity@ must be commenced no more than six months after the public entity rejects the
14
claim. Cal. Gov. Code, ' 945.6, subd. (a)(1).
15
Federal courts must require compliance with the CGCA for pendant state law claims that
16
seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th
17
Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th
18
Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may
19
proceed only if the claims were first presented to the state in compliance with the applicable
20
requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th
21
Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).
22
Despite previously receiving these standards, Plaintiff fails to state any allegations to
23
show that he complied with the CGCA to be allowed to pursue claims under California law in this
24
action. Thus, it is recommended that Plaintiff’s claims based on California law be dismissed.
25
26
27
5.
Declaratory and Injunctive Relief
Plaintiff seeks both declaratory and injunctive relief. Because Plaintiff’s claims for
damages necessarily entail a determination whether his rights were violated, his separate request
28
13
1
for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 559, 565-66 n.8
2
(9th Cir. 2004).
3
Plaintiff’s request for injunctive relief seeks various forms of medical care and treatment
4
for the injuries he allegedly sustained in this action. Plaintiff mimicked his request in a separate
5
motion for preliminary injunctive relief which he filed on March 23, 2017, (Doc. 7), which was
6
addressed in the first screening order. As stated in that order, “[a] plaintiff seeking a preliminary
7
injunction must establish that he is likely to succeed on the merits and to suffer irreparable harm
8
in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
9
injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S.
10
7, 20 (2008) (citations omitted). “A preliminary injunction is an extraordinary remedy never
11
awarded as a matter of right. In each case, courts must balance the competing claims of injury
12
and must consider the effect on each party of the granting or withholding of the requested relief.
13
In exercising their sound discretion, courts of equity should pay particular regard for the public
14
consequences in employing the extraordinary remedy of injunction.” Id., at 24 (citations and
15
quotations omitted). An injunction may only be awarded upon a clear showing that the plaintiff is
16
entitled to such relief. Id., at 22.
17
Requests for prospective relief are further limited by 18 U.S.C. ' 3626 (a)(1)(A) of the
18
Prison Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly
19
drawn, extends no further than necessary to correct the violation of the Federal Right, and is the
20
least intrusive means necessary to correct the violation of the Federal Right.” The pendency of
21
this action does not give the Court jurisdiction over prison officials in general or over the
22
conditions of Plaintiff’s confinement. Summers v. Earth Island Institute, 555 U.S. 488, 492-93
23
(2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is
24
limited to the parties in this action and to the cognizable legal claims upon which this action is
25
proceeding. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at 969.
26
27
The claims which Plaintiff proceeds on in this action arise from events that occurred at the
CSP-Cor. However, Plaintiff was subsequently transferred and is currently housed at SVSP.
28
14
1
Plaintiff thus lacks standing in this action to seek relief directed at remedying his current
2
conditions of confinement at SVSP. Likewise, to the extent that his motion seeks relief to remedy
3
his conditions of confinement for the time he was at CSP-Cor, it was rendered moot upon his
4
transfer to SVSP. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948
5
F.2d 517, 519 (9th Cir. 1991).
Plaintiff is not precluded from attempting to state cognizable claims in a new action if he
6
7
believes his civil rights are being violated beyond his pleadings in this action. The issue is not that
8
Plaintiff’s allegations are not serious, or that Plaintiff is not entitled to relief if sought in the
9
proper forum. The seriousness of Plaintiff’s accusations concerning Plaintiff’s access to medical
10
care for his conditions cannot and do not overcome what is a jurisdictional bar. Steel Co., 523
11
U.S. at 103-04 (“[The] triad of injury in fact, causation, and redressability constitutes the core of
12
Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the
13
burden of establishing its existence.”) This action is simply not the proper vehicle for
14
conveyance of the relief Plaintiff seeks and his request for injunctive relief should be dismissed.
15
II.
16
CONCLUSION & RECOMMENDATION
Plaintiff's First Amended Complaint states the following cognizable claims under the
17
Eighth Amendment: against C/O Caldwell, Lt. Gonzales, C/O H. Flores, and C/O S. Longoria for
18
use of excessive force; against C/Os L. Cahlander, R. Roque, K. Cowart, T. Harris, A. Fernandez,
19
R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha for failing to intervene and protect
20
Plaintiff; and against C/Os Longoria, R. Guerra, Lt. J. Gonzales, LVN S. Branson, Sgt.
21
Magallanes and C/Os A. Casas, R. Roque, and D. Nora for deliberate indifference to Plaintiff’s
22
serious medical needs. However, Plaintiff does not state any cognizable claims against Warden
23
D. Davey, nor does he show compliance with the CGCA to be allowed to proceed on any claims
24
under California law. Given that Plaintiff was previously given the standards and requirements
25
for his claims against Warden Davey and under California law, it appears the deficiencies in
26
Plaintiff's pleading are not capable of being cured through amendment which would make
27
subsequent leave to amend futile. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).
28
15
1
Further leave to amend need not be granted.
2
Accordingly, based on the foregoing, the Court RECOMMENDS:
3
1.
That this action proceed on the Eighth Amendment claims against:
(a)
4
Against C/O Caldwell, Lt. Gonzales, C/O H. Flores, and C/O S. Longoria
for use of excessive force;
5
(b)
6
Against C/Os L. Cahlander, R. Roque, K. Cowart, T. Harris, A. Fernandez,
7
R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha for failing to
8
intervene and protect Plaintiff; and
(c)
9
Against C/Os Longoria, R. Guerra, Lt. J. Gonzales, LVN S. Branson, Sgt.
10
Magallanes and C/Os A. Casas, R. Roque, and D. Nora for deliberate
11
indifference to Plaintiff’s serious medical needs; and
12
2.
action based on Plaintiff's failure to state cognizable claims under section 1983.
13
14
All other claims and Defendants should be dismissed with prejudice from this
These Findings and Recommendations will be submitted to the United States District
15
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21
16
days after being served with these Findings and Recommendations, Plaintiff may file written
17
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
18
Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
19
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
20
839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
21
IT IS SO ORDERED.
22
23
Dated:
March 14, 2018
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?