Baker v. Beam et al

Filing 33

ORDER ADOPTING in Part 29 FINDINGS AND RECOMMENDATIONS, and Dismissing Certain Claims and Defendants signed by District Judge Anthony W. Ishii on 06/10/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIKE BAKER,

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Case No. 1:16-cv-01737-AWI-BAM (PC)
Plaintiff,

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v.

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ORDER ADOPTING IN PART FINDINGS
AND RECOMMENDATIONS, AND
DISMISSING CERTAIN CLAIMS AND
DEFENDANTS

E. BEAM, et al.,

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(ECF Nos. 29, 32)
Defendants.
THIRTY (30) DAY DEADLINE

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

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rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 2, 2019, the Magistrate Judge issued Findings and Recommendations (“F&R”)

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recommending that this action proceed on Plaintiff’s second amended complaint against

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Defendants Vogel, Caldwell, and Cervantes for deliberate indifference in violation of the Eighth

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Amendment, against Defendants Vasquez, Vogel, Beam, Cuevas, Caldwell, Cervantes, Huerta, and

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Benevidas for retaliation in violation of the First Amendment, against Defendants Vasquez, Vogel,

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Beam, Cuevas, Caldwell, Cervantes, Huerta, and Benevidas for conspiracy, against Defendants

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Vogel, Beam, Cuevas, Caldwell, Cervantes, Huerta, and Benevidas for denial of access to the courts

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in violation of the First and Fourteenth Amendments, against Defendants Vogel, Beam, Cuevas,

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Caldwell, Cervantes, Huerta, and Benevidas for a state law claim for property deprivation under

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California law, against Defendants Vasquez, Vogel, Beam, Cuevas, Caldwell, Cervantes, Huerta,

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and Benevidas for a state law claim for violation of California Civil Code 52.1, against Defendant

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Vogel for a state law claim for intentional infliction of emotional distress; and against Defendants

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Vogel, Caldwell, and Cervantes for a state law claim for negligent infliction of emotional distress.

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(ECF No. 29.) The Magistrate Judge further recommended that all other claims and all other

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defendants be dismissed from this action. (Id. at 18.) The F&R was served on Plaintiff and
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contained notice that any objections thereto were to be filed within fourteen (14) days after service.

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(Id.)

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Following extensions of time, on May 22, 2019, Plaintiff timely filed written objections to
the F&R. (ECF No. 32.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a

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de novo review of this case.

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Discussion

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A.

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because

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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668

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F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

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Cir. 2009).

First Amendment Retaliation

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Plaintiff argues that the F&R erroneously failed to find that Plaintiff’s “Claim No. 8”

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alleged a cognizable claim for retaliation against Defendants Beam, Goree, Diaz, Cribbs, Pacillas,

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and Jarvis. After reviewing the allegations in the second amended complaint, the Court finds that,

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liberally construed, Plaintiff has alleged a cognizable claim for retaliation against Defendants

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Beam, Cribbs, Diaz, Goree, Jarvis, and Pacillas. With regards to Defendant Beam, Plaintiff alleges

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that, on February 18, 2015, Defendant Beam threatened to trash all of Plaintiff’s legal work stored

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in several boxes in the 4B library if Plaintiff filed a lawsuit against Defendant Beam. Cf. Brodheim,

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584 F.3d at 1270 (holding that a “mere threat of harm can be an adverse action.”). Plaintiff’s

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allegations are sufficient to state a claim for retaliation in violation of the First Amendment against

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Defendant Beam. With regard to Defendants Cribbs, Diaz, Goree, Jarvis, and Pacillas, Plaintiff

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has alleged that each Defendant responded to one or more of Plaintiff’s submitted administrative

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appeals by threatening Plaintiff with disciplinary action for filing appeals and staff complaints.

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Therefore, Plaintiff’s first objection is sustained.
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B.

Bane Act

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Plaintiff argues that the Magistrate Judge erred by failing to find that Plaintiff’s “Claim No.

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13” alleged a cognizable claim for a violation of the California Civil Code § 52.1. Plaintiff asserts

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that Defendants Cribbs, Diaz, Goree, Jarvis, and Pacillas interfered or attempted to interfere with

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his First Amendment rights by threatening him with disciplinary action for filing appeals and staff

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complaints. Additionally, the F&R found cognizable § 52.1 claims against the other defendants.

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The F&R found viable claims based in part on: (1) verbal threats by a nurse to make Plaintiffs life

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miserable, (2) placing Plaintiff in a redlined cell (i.e. a cell that is not to be used to house inmates)

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and depriving him of property, (3) telling Plaintiff that his property would be trashed and he would

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be retaliated against if he did not withdraw his complaints, (4) dumping Plaintiff’s damaged

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property on the floor and being told that was a result of his complaints, and (5) mishandling

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Plaintiff’s property and falsifying Plaintiff’s records to prevent him from filing staff complaints.

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The Bane Act (California Civil Code § 52.1) makes it unlawful for any person to “interfere[]

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by threats, intimidation, or coercion, or attempt[ ] to interfere by threats, intimidation, or coercion,

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with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution

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or laws of the United States, or of the rights secured by the Constitution or laws of this state.” Cal.

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Civ. Code § 52.1. However, for conduct to be actionable under § 52.1, the conduct must involve

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violence or the threat of violence. See Julian v. Mission Community Hosp., 11 Cal.App.5th 360,

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395 (2017); Gabrielle A. v. County of Orange, 10 Cal.App.5th 1268, 1290 (2017); Austin B. v.

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Escondido Union Sch. Dist. , 149 Cal.App.4th 860, 882 (2007); Cabesuela v. Browning-Ferris

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Indus., 68 Cal.App.4th 101, 111 (1998); Judicial Council of Cal., Civil Jury Instructions, No. 3066

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(2019 ed.). Speech alone does not violate § 52.1 unless the speech itself threatens violence, the

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plaintiff has a reasonable belief that violence against himself or his property will occur, and the

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person making the threat appears to have the ability to carry out the threat. See Cal. Civ. Code §

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52.1 (k); In re M.S., 10 Cal.4th 698, 715 (1995); Allen v. City of Sacramento, 234 Cal.App.4th 41,

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66 (2015).

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Here, the Court concludes that the conduct identified by Plaintiff in his objections does not

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involve violence or the threat of violence. Being threatened with disciplinary action, or the
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institution of prison disciplinary proceedings, may involve the possible loss of privileges or time

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credits, or being assigned to a different cell or a different type of confinement, but it is not a threat

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of violence. Therefore, Plaintiff’s objections are overruled and no § 52.1 claim will be permitted

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against Defendants Cribbs, Diaz, Goree, Jarvis, and Pacillas.

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Additionally, upon further review, the Court respectfully disagrees with part of the F&R’s

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analysis of the remainder of Plaintiff’s § 52.1 claim. Liberally construed, the Court finds that the

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alleged conduct of Sgt. Beam involves a threat of violence. Sgt. Beam is alleged to have threatened

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to “trash” Plaintiffs property if Plaintiff did not withdraw his staff complaints. Since Sgt. Beam

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would have access to Plaintiff’s cell and property, “trash” clearly means “to damage,” and some of

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Plaintiff’s property was damaged by other defendants, the Court finds that the amended complaint

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adequately alleges a threat of violence by Sgt. Beam. See Cal. Civ. Code § 52.1(k). The Court also

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concludes that the allegations against Officers Huerta and Benavides involve acts of violence

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because those officers allegedly dumped Plaintiffs’ damaged property on the floor and indicated

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that the property was damaged because Plaintiff filed staff complaints. Cf. id. (noting that speech

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that threatens violence against property, when combined with a plaintiff’s reasonable fear and the

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defendant’s ability to carry out the threat, is actionable). However, none of the acts alleged against

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the remaining defendants are sufficient to show either violence or the threat of violence. Because

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the conduct identified by Plaintiff against Vasquez, Vogel, Caldwell, and Cervantes does not

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involve violence or the threat of violence, the Court respectfully declines to adopt the portion of

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the F&R that finds a plausible § 52.1 claim against those Defendants.

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C.

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With the two exceptions above relating to retaliation and § 52.1, the Court concludes that

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Remainder of the F&R

the F&R’s analysis is correct. Therefore, the Court will adopt the remainder of the F&R.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Findings and Recommendations issued on April 2, 2019, (Doc. No. 29), are
adopted in part, consistent with the above analysis;
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2.

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This action shall proceed on Plaintiff’s second amended complaint as follows:
a. Against Defendants Vogel, Caldwell, and Cervantes for deliberate indifference

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in violation of the Eighth Amendment;

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b. Against Defendants Vasquez, Vogel, Beam, Cuevas, Caldwell, Cervantes,

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Huerta, Benevidas, Goree, Cribbs, Diaz, Jarvis, and Pacillas for retaliation in

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violation of the First Amendment;

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c. Against Defendants Vasquez, Vogel, Beam, Cuevas, Caldwell, Cervantes,

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Huerta, and Benevidas for conspiracy;

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d. Against Defendants Vogel, Beam, Cuevas, Caldwell, Cervantes, Huerta, and

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Benevidas for denial of access to the courts in violation of the First and

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Fourteenth Amendments;

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e. Against Defendants Vogel, Beam, Cuevas, Caldwell, Cervantes, Huerta, and

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Benevidas for a state law claim for property deprivation under California law;

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f. Against Defendants Beam, Huerta, and Benevidas for violation of California

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Civil Code 52.1;

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g. Against Defendant Vogel for a state law claim for intentional infliction of

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emotional distress; and

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h. Against Defendants Vogel, Caldwell, and Cervantes for a state law claim for

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negligent infliction of emotional distress;
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All other claims and defendants are dismissed based on Plaintiff’s failure to state
claims upon which relief may be granted; and

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This action is referred back to the assigned Magistrate Judge for further proceedings
consistent with this order.

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IT IS SO ORDERED.
Dated: June 10, 2019
SENIOR DISTRICT JUDGE

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