Turner v. Administrative Security Personell, et al.

Filing 44

FINDINGS and RECOMMENDATIONS recommending dismissal of certain claims and defendants re 1 , 17 signed by Magistrate Judge Stanley A. Boone on 11/29/2017. Referred to Judge Dale A Drozd; Objections to F&R's 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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DEMAREALE TURNER,

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Plaintiff,
v.
ADMINISTRATIVE SECURITY
PERSONELL, et al.,
Defendants.

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Case No.: 1:16-cv-01643-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
[ECF Nos. 1, 17]

Plaintiff Demareale Turner is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction on November 30, 2016.

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(ECF No. 11.) To date, Defendants have not consented or declined to United State Magistrate Judge

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jurisdiction.

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On April 17, 2017, the Court found that Plaintiff’s complaint stated a cognizable claim for

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excessive force against Defendants Robles and Hernandez. (ECF No. 17.) The Court dismissed all

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other claims and Defendants from the action for failure to state a cognizable claim for relief. (Id.)

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The Court indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff

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had consented to Magistrate Judge jurisdiction and no other parties had yet appeared. (Id.)

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not

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have jurisdiction to dismiss the claims and Defendants in its April 17, 2017 order.

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Based upon the foregoing, the undersigned will now recommend to the District Judge that this

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case continue to proceed only on Plaintiff’s cognizable claims, and that the claims and Defendants

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described below be dismissed, for the reasons explained herein.

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I.

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SCREENING REQUIREMENT

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer
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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS
On Saturday, January 9, 2016, Plaintiff, along with his cellmate Hill, were confined to their

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cell and were engaging in the exercise of their religious practices. At approximately 0732 hours,

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correctional officers Robles and Hernandez approached their cell stating, “Get the fuck down

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motherfucker.” Without any further promoting, delay or hesitation, Hernandez began administering

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chemical restraints for a prolonged period of time.

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Correctional officer Legaspi opened the cell door allowing the chemical agent to be

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administered. Plaintiff was placed in “a submissive lock, one knee was placed in the center of [his]

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back, while the other knee rested on [his] outer back thigh, and it appeared to be a forearm positioned

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on my neck.” Plaintiff was experiencing difficulties breathing, decrease in circulation of blood flow

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and his heart rated dropped causing him to feel on the brink of death. Officer Hernandez applied

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extreme pressure and force showing him further into the concrete floor causing Plaintiff to lose

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consciousness. When he awake, Plaintiff was unreasonable forced to his feet then escorted by officer

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Robles. Robles elevated Plaintiff’s arms and his hands were physically restrained by handcuffs that

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were unreasonably tight around his wrists, restricting the circulation of blood flow. Both of Plaintiff’s

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hands grew completely numb causing him to lose any sense of feeling, while Robles was

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simultaneously applying an unreasonable amount of force to the back of his neck causing unbearable

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pain.

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Although Plaintiff was escorted by Robles to the shower area, he never received a

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decontamination shower. Officer Hernandez entered the shower area alone, and he forcibly turned

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Plaintiff around placing him in a compromising position. He then yanked down Plaintiff garments and

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trousers and forcibly spread his buttocks probing his anal area with a cellphone.

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After the intrusion, Plaintiff was escorted to the program office where he made contact with
sergeant W. Sullivan and before securing Plaintiff in a holding cell he refused to comply with the
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officer’s orders to conduct an unclothed body search. Plaintiff also refused to open his mouth as

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directed by the officer.
On January 12, 2016, Plaintiff began experiencing depression. Days later, Plaintiff had to go

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on crisis bed/watch because he was experiencing suicidal thoughts.
On January 13, 2016, Plaintiff submitted an emergency inmate appeal alleging the use of

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excessive force and sexual misconduct.
On January 17, 2016, Plaintiff received a visit from his wife and he told her about the incident

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on January 9, 2016.
On January 19, 2016, Plaintiff’s wife called the Kern Valley State Prison program office

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because she was concerned about Plaintiff’s welfare regarding the incident of excessive force and

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sexual misconduct, and the information was relayed to the investigative services unit.
On January 20, 2016, Plaintiff was seen by Dr. Camaco of the mental health department, and

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on January 21, 2016, Plaintiff was transferred to the mental health crisis bed.
On February 2, 2016, Plaintiff received legal mail which had been unreasonable ransacked and

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searched outside of his presence. Plaintiff believes this action was an indirect message sent by prison

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officials that he can be touched for alleging officer’s misconduct. Plaintiff perceived this as an

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immediate threat and filed an emergency inmate appeal on February 3, 2016.
On February 4, 2016, Plaintiff was transferred to California State Prison, LAC enhanced

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outpatient program to receive mental health treatment.
On February 23, 2016, Plaintiff submitted a claim to the internal affairs office. On this same

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date, a video interview was conducted regarding the alleged use of excessive force and sexual

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misconduct.
On February 28, 2016, Plaintiff’s submitted a claim to the Victim’s Advocate.

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III.

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DISCUSSION

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A.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective

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component of an Eighth Amendment claim is contextual and responsive to contemporary standards of

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decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses

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of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always

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

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Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002).

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Viewing Plaintiff’s allegations liberally as this Court must, Plaintiff states a cognizable claim

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for excessive force against Defendants Robles and Hernandez. However, Plaintiff does not state a

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cognizable claim against any of the other named Defendants. The mere fact that officer Legaspi

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opened the cell door to allow Defendants Robles and Hernandez to enter Plaintiff’s cell does not

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demonstrate active involvement in the alleged use of force. Accordingly, Plaintiff states a cognizable

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claim for excessive force against Defendants Robles and Hernandez only.

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B.

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Plaintiff contends that sergeant W. Sullivan should have been present during the initial search

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Supervisory Liability

to ensure the order and maintenance of safety and security.
Supervisory personnel may not be held liable under section 1983 for the actions of subordinate

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employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967,

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977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75

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(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A
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supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation,

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or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal quotation

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marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act if

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supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).

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Plaintiff has not alleged sufficient factual allegations to give rise to a cognizable claim against

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Defendant sergeant W. Sullivan. The only basis for such a claim would be respondeat superior, which

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is precluded under section 1983. Accordingly, Plaintiff fails to state a cognizable claim against

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Defendant W. Sullivan.

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C.

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“A battery is any willful and unlawful use of force or violence upon the person of another.”

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Cal. Penal Code § 240, 242 (West 2005); 5 B. E. Witkin, Summary of California Law, Torts § 346

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(9th ed. 1988). For battery, a plaintiff must show that (1) the defendant intentionally did an act that

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resulted in harmful or offensive contact with the plaintiff’s person; (2) the plaintiff did not consent to

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the contact; and (3) the contact caused injury, damage, loss, or harm to the plaintiff. Id. (citation and

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quotations omitted).

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State Law Claims of Battery and Intentional Infliction of Emotional Distress

Under California law, the elements of intentional infliction of emotional distress are: (1)

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extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard

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of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme

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emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s

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outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (quotation marks omitted);

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Tekkle v. United States, 567 F.3d 554, 855 (9th Cir. 2007); Simo v. Union of Needletrades, Industrial

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& Textile Employees, 322 F.3d 602, 621-22 (9th Cir. 2003). Conduct is outrageous if it is so extreme

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as to exceed all bounds of that usually tolerated in a civilized community. Corales, 567 F.3d at 571;

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Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622.
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Plaintiff alleges a claim under state law for battery and intentional infliction of emotional

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distress. However, the Government Claims Act requires exhaustion of those claims with the

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California Victim Compensation and Government Claims Board, and Plaintiff is required to

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specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201,

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208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal.

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2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001);

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Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).
Plaintiff has not alleged compliance with the claims process and therefore cannot state a tort

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claim under California law.

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D.

Violation of Title 15 of the California Code of Regulations

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Plaintiff seeks to impose liability based on the violation of Title 15 prison regulations.

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However, there is no authority for the proposition that there exists a private right of action available to

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Plaintiff for violation of Title 15 regulations and there exist ample district court decisions holding to

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the contrary. Vasquez v. Tate, No. 1:10-cv-1876 JLT (PC), 2012 WL 6738167, at *9 (E.D. Cal. Dec.

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28, 2012); Davis v. Powell, 901 F.Supp.2d 1196, 1211 (S.D. Cal. 2012); Meredith v. Overley, No.

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1:12-cv-00455-MJS (PC), 2012 WL 3764029, at *4 (E.D. Cal. Aug. 29, 2012); Parra v. Hernandez,

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No. 08cv0191-H (CAB), 2009 WL 3818376, at *8 (S.D.Cal. Nov. 13, 2009); Davis v. Kissinger, No.

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CIV S-04-0878 GEB DAD P, 2009 WL 256574, at *12 n.4 (E.D.Cal. Feb. 3, 2009), adopted in full,

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2009 WL 647350 (Mar. 10, 2009). Plaintiff’s Title 15 claims shall be dismissed for failure to state a

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claim.

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E.

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Although Plaintiff names Defendants Waddles, Chanelo and Gaddis as Defendants in the

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Defendants Waddles, Chanelo, and Gaddis-Inmate Appeal Process

caption of his complaint, Plaintiff fails to state a cognizable claim against any of these individuals.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada
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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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To the extent, Plaintiff seeks to hold these Defendants liable for their involvement in the

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appeals process, Plaintiff fails to state a cognizable claim for relief. “The Fourteenth Amendment’s

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Due Process Clause protects persons against deprivations of life, liberty, or property; and those who

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seek to invoke its procedural protection must establish that one of these interests is at stake.”

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Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a have protected liberty interest in

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the processing his appeals, and therefore, he cannot pursue a claim for denial of due process with

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respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

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Accordingly, Plaintiff fails to state a cognizable claim against Defendants Waddles, Chanelo,
and Gaddis.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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For screening purposes only, this action proceed against Defendants Robles and

Hernandez for excessive force; and
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All other claims and Defendants be dismissed from the action for failure to state a

cognizable claim for relief.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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November 29, 2017
UNITED STATES MAGISTRATE JUDGE

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