Grant v. Heisol et al
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 1 , signed by Magistrate Judge Michael J. Seng on 2/10/17: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RUSSELL S. GRANT,
Case No. 1:17-cv-00024-MJS (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
HEISOL, et al.,
(ECF No. 1)
THIRTY DAY DEADLINE
Plaintiff, a prisoner proceeding pro se and in forma pauperis, filed this civil rights
21 action pursuant to 42 U.S.C. § 1983 on September 6, 2016. (ECF No. 1.) Plaintiff‟s
22 complaint is before the Court for screening.
He has consented to Magistrate Judge
23 jurisdiction. (ECF No. 6.) No other parties have appeared.
The Court is required to screen complaints brought by prisoners seeking relief
26 against a governmental entity or an officer or employee of a governmental entity. 28
27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
28 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
1 which relief may be granted, or that seek monetary relief from a defendant who is
2 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
3 or any portion thereof, that may have been paid, the court shall dismiss the case at any
4 time if the court determines that . . . the action or appeal . . . fails to state a claim upon
5 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Section 1983 provides a cause of action against any person who deprives an
8 individual of federally guaranteed rights “under color” of state law. 42 U.S.C. § 1983. A
9 complaint must contain “a short and plain statement of the claim showing that the pleader
10 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
12 mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
13 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not
14 required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
15 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
16 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally
18 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
19 2002). This requires the presentation of factual allegations sufficient to state a plausible
20 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
21 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to
22 have their pleadings liberally construed and to have any doubt resolved in their favor,
23 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,
24 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,
25 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff is currently incarcerated at the California Substance Abuse Treatment
28 Facility (“CSATF”) in Corcoran, California,. However, his claims stem from events that
1 began at the Sierra Conservation Center (“SCC”), a state prison in Jamestown,
2 California, and carried over to Plaintiff‟s subsequent institutions. He names Correctional
3 Officers Heisol, G. Wright, and J. Delgado, and psychiatrist Dr. Maddox as Defendants.
4 However, insofar as he refers to everyone identified in the complaint as a “Defendant”, it
5 appears he seeks to sue each of them individually.
Plaintiff‟s allegations are at times difficult to follow, but, as best the Court can
7 determine, he seeks to allege the following:
On February 16, 2016, Plaintiff was sent to the administrative segregation unit
9 (“ad-seg”) of SCC because of enemy concerns. Defendant Heisol was Plaintiff‟s tier
10 officer before Plaintiff went to ad-seg. Heisol somehow got the impression that Plaintiff
11 told Investigative Services Unit (“ISU”) officials that Heisol had drugs. Heisol was caught
12 with a controlled substance and was disciplined. Plaintiff never knew that Heisol had
13 drugs, and never reported Heisol to ISU officers.
On February 18, 2016, an officer came to ad-seg to move Plaintiff to another cell.
15 When Plaintiff left his cell, four inmate assailants and Heisol met him in a side hallway out
16 of view of other prisoners. An assault took place and continued into the main medical
17 building. As the assault went on, Defendants watched and did not intervene. One of the
18 inmates grabbed a medical knife and stated, “You snitchin‟, I‟ll cut yo dick off.” Heisol
19 stated, “I will have you killed, if you tell anyone. I have your family addresses.”
20 Defendants Delgado and Wright used an unreasonable amount of force to shackle
21 Plaintiff, and Officer Bartholomew assisted. Plaintiff suffered scuffed knees and scars on
22 his left shin. Plaintiff “appeared” to experience chest pains after Defendants injected
23 Plaintiff with methamphetamines. Rather than send him for medical attention, Defendants
24 subjected Plaintiff to more excessive force and threw him in a holding cell for several
25 hours. Plaintiff was later transported to Sonora Regional Hospital “for a false medical
26 reason.” Prison custody staff and medical staff said Plaintiff was smoking “spice” (a form
27 of synthetic marijuana), even though Plaintiff was examined upon his arrival in ad-seg on
28 February 16, 2016.
On February 21, 2016, Plaintiff was discharged from the hospital and returned to
2 SCC. He was housed in “OHU,” which is in the main medical area. On February 22,
3 2016, Plaintiff was returned to ad-seg. That day, an officer telephoned Defendant Dr.
4 Maddox. Dr. Maddox arrived in ad-seg and told Plaintiff he was there because an officer
5 called him and he wanted to ask Plaintiff some questions. Based on the questions Dr.
6 Maddox asked, Plaintiff believed Dr. Maddox was there to help Plaintiff. Plaintiff told Dr.
7 Maddox about the assault, the methamphetamines, and the verbal abuse. Dr. Maddox
8 manipulated Plaintiff into thinking Plaintiff would be going to a program to escape the
9 harm caused by Defendants. Plaintiff signed a paper for this program.
On February 23, 2016, Plaintiff was transferred to the Pelican Bay State Prison
11 (“PBSP”) Mental Health/Suicide Program unit. The next day, Plaintiff was seen by a
12 psychiatrist (it is unclear if this was Dr. Maddox or another individual) who told Plaintiff he
13 would have to stay in the unit for five days before he could be cleared. However, Plaintiff
14 remained in the unit for ten days, because officers told lies to keep Plaintiff. While
15 Plaintiff was housed at PBSP, officers at PBSP denied Plaintiff showers and logged that
16 Plaintiff had refused showers. Hall, Burke, and an unnamed Sergeant also called Plaintiff
17 a snitch. The Sergeant was Heisol‟s uncle, and Hall was Heisol‟s cousin. Plaintiff believes
18 these family relationships are the reason he was sent to PBSP.
Plaintiff did not return to SCC until March 4, 2016. When Plaintiff arrived at SCC,
20 he began arguing with Dr. Maddox and accusing Dr. Maddox of sending him to PBSP to
21 cover up the other Defendants‟ actions. Dr. Maddox was so enraged by Plaintiff‟s
22 accusations that he sent Plaintiff to the California State Prison in Folsom, California.
23 Plaintiff was never suicidal, and in fact had been cleared by five doctors at PBSP on
24 February 29, 2016. Dr. Maddox misused his authority to cover up the abuses of other
Several months later, on July 23, 2016, Plaintiff was housed at the Correctional
27 Training Facility (“CTF”). Several black inmates told Plaintiff that he needed to leave the
28 central yard because one of the officers told them Plaintiff had arrived from SCC. During
1 unlock, Plaintiff told the tier officer that he was not safe on the central yard. The officer
2 said to Plaintiff, “You don‟t have to go!” as if it were a joke. Plaintiff spoke to a lieutenant
3 and explained that he had safety concerns on the yard. While Plaintiff was in the room
4 with the lieutenant, he heard a familiar voice, and realized Heisol was in the room as well.
Plaintiff was placed in ad-seg. While there, he was verbally threatened, and
6 Plaintiff believes officers did something to his food.
On August 10, 2016, Plaintiff was transferred to the Salinas Valley State Prison
8 (“SVSP”) ad-seg for temporary housing. Eight days later, he was released from ad-seg
9 into the level 3 “SNY,” or protective custody yard. Plaintiff did not want to be released
10 from ad-seg, and he states his placement in a level 3 yard was inconsistent with his point
11 level, which was only a level 2.
On August 25, 2016, Plaintiff made several calls to 911 on his cell phone because
13 of inmates outside of his cell. Plaintiff‟s cellmate kept saying, “You can‟t beat CDC, you
14 need to throw away yo‟ paperwork.” Defendants continued to enlist inmates to threaten
15 and intimidate Plaintiff. Eventually, Plaintiff was placed back in ad-seg pending his
16 transfer to CSATF.
Beginning on September 11, 2016, Plaintiff was subjected to countless incidents of
18 retaliation from a large number of Defendants. First, Plaintiff requested to go to the
19 library, but an officer never called him down. Another time, Plaintiff was escorted across
20 the yard in handcuffs, and when he asked Officer M. Pilkerton why he was being
21 escorted in cuffs, she replied, “Someone read the 602 wrong, they jumped the gun.” On
22 a third occasion, Plaintiff was sent to mental health and asked questions, but Plaintiff
23 refused to answer them because he knew the questions were just a mental game.
24 Defendants threatened to place Plaintiff on suicide watch if he did not answer the
25 questions. The mental health interviews continued on January 4, 2017. On December 7,
26 2016, Plaintiff was called from his cell as if to go to medical, however ISU officers came
27 for him. Plaintiff was placed in handcuffs, which he viewed as an intimidation tactic.
28 Plaintiff was also embarrassed in front of the other inmates.
Plaintiff was denied his mail in October 2016, when the CSATF mailroom sent it
2 back bearing the words “insufficient address” even though the address was correct.
Plaintiff alleges violations of First and Eighth Amendments. He states that in
4 addition to the injuries he suffered as a result of the excessive force, he suffered
5 emotional damage such as fear and humiliation. He seeks nominal, compensatory and
6 punitive damages.
For the reasons below, Plaintiff‟s complaint will be dismissed with leave to amend.
Allegations Against Non-Parties and Doe Defendants
Defendants Heisol, G. Wright, J. Delgado, and Dr. Maddox of SCC are the only
11 individuals named as Defendants in the complaint. However, Plaintiff‟s complaint
12 contains allegations against non-parties Bartholomew, Hall, Burke, and Pilkerton, as well
13 as several unnamed officers and medical professionals.
Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant be
15 named in the caption of the complaint. A complaint is subject to dismissal if “one cannot
16 determine from the complaint who is being sued, [and] for what relief. . . .” McHenry v.
17 Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Accordingly, the Court will not herein address
18 any allegations made against individuals not named in the caption. If Plaintiff wishes to
19 pursue such allegations, he may amend his complaint and include these additional
20 parties in the caption. If he does not know a party‟s name, he may proceed against him or
21 her as a Doe defendant.
The use of Doe defendants generally is disfavored in federal court. Wakefield v.
23 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d
24 637, 642 (9th Cir. 1980)). The Court cannot order the Marshal to serve process on any
25 Doe defendants until such defendants have been identified. See, e.g., Castaneda v.
26 Foston, No. 1:12-cv-00026 WL 4816216, at *3 (E.D. Cal. Sept. 6, 2013). Plaintiff may,
27 under certain circumstances, be given the opportunity to identify unknown defendants
28 through discovery prior to service. Id. (plaintiff must be afforded an opportunity to identify
1 unknown defendants through discovery unless it is clear that discovery would not
2 uncover their identities). However, in order to proceed to discovery, Plaintiff must first
3 state a cognizable claim.
Furthermore, Plaintiff may not attribute liability to a group of defendants, but must
5 “set forth specific facts as to each individual defendant‟s” deprivation of his rights. Leer v.
6 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045
7 (9th Cir. 1989). Therefore, Plaintiff must distinguish between Doe defendants by, for
8 example, referring to them as “John Doe 2,” “John Doe 3,” and so on, and describe what
9 each did or failed to do to violate Plaintiff‟s rights. See Ingram v. Brewer, No. 1:07-cv10 00176-OWW-DLB, 2009 WL 89189 (E.D. Cal. January 12, 2009) (“In order to state a
11 claim for relief under section 1983, Plaintiff must link each named defendant with some
12 affirmative act or omission that demonstrates a violation of Plaintiff‟s federal rights.”).
Allegations of name-calling, verbal abuse, or threats fail to state a constitutional
Verbal Abuse and Threats
15 claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“Verbal
16 harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42
17 U.S.C. § 1983”) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Gaut v.
18 Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional
19 wrong). To the extent Plaintiff seeks recompense based purely on the fact that hurtful
20 statements were made, those claims are dismissed.
The Eighth Amendment protects prisoners from both excessive uses of force and
23 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th
24 Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman,
25 452 U.S. 337, 347 (1981)) (quotation marks omitted).
The unnecessary and wanton infliction of pain violates the Cruel and Unusual
28 Punishments Clause of the Eighth Amendment.
Hudson v. McMillian, 503 U.S. 1, 5
1 (1992) (citations omitted). For claims arising out of the use of excessive physical force,
2 the issue is “whether force was applied in a good-faith effort to maintain or restore
3 discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34,
4 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted).
5 The objective component of an Eighth Amendment claim is contextual and responsive to
6 contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation marks and citation
7 omitted), and although de minimis uses of force do not violate the Constitution, the
8 malicious and sadistic use of force to cause harm always violates contemporary
9 standards of decency, regardless of whether or not significant injury is evident. Wilkins,
10 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted).
Here, Plaintiff claims that on February 18, 2016, Defendants Delgado and Wright
12 used “an unreasonable amount of force” when they shackled Plaintiff. These allegations
13 are insufficient to state a claim. Plaintiff must state with a degree of specificity what each
14 Defendant did that amounted to an excessive use of force and describe in detail the facts
15 leading up to the use of force..
Likewise, Plaintiff‟s claim that Defendants injected methamphetamines into Plaintiff
17 fails to state a claim. He does not state who injected him, under what circumstances, or
18 even how Plaintiff knew that he was administered methamphetamines. Plaintiff‟s
19 excessive force claims will be dismissed with leave to amend.
Conditions of Confinement
To allege an Eighth Amendment claim for inhumane conditions of confinement, a
23 prisoner must show that prison officials were deliberately indifferent to a substantial risk
24 of harm to his health or safety. See, e.g., Farmer, 511 U.S. at 847; Thomas v. Ponder,
25 611 F.3d 1144, 1150-51 (9th Cir. 2010). “Deliberate indifference describes a state of
26 mind more blameworthy than negligence” but is satisfied by something “less than acts or
27 omissions for the very purpose of causing harm or with knowledge that harm will result.”
28 Farmer, 511 U.S. at 835. Plaintiff must demonstrate first that the seriousness of the risk
1 was obvious or provide other circumstantial evidence that Defendants were aware of the
2 substantial risk to his health, and second that there was no reasonable justification for
3 exposing him to that risk. Lemire, 726 F.3d at 1078 (citing Thomas v. Ponder, 611 F.3d
4 1144, 1150 (9th Cir. 2010)) (quotation marks omitted).
To make out a claim for failure to protect, the prisoner must establish that prison
6 officials were “deliberately indifferent” to serious threats to the inmate's safety. Farmer,
7 511 U.S. at 834. To demonstrate that a prison official was deliberately indifferent to a
8 serious threat to the inmate's safety, the prisoner must show that “the official [knew] of
9 and disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware
10 of facts from which the inference could be drawn that a substantial risk of serious harm
11 exists, and [the official] must also draw the inference.” Id. at 837; Anderson v. County of
12 Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). However, to prove knowledge of the risk, the
13 prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk
14 may be sufficient to establish knowledge. Farmer, 511 U.S. at 842.
Finally, for Eighth Amendment claims arising out of medical care in prison, Plaintiff
16 “must show (1) a serious medical need by demonstrating that failure to treat [his]
17 condition could result in further significant injury or the unnecessary and wanton infliction
18 of pain,” and (2) that “the defendant‟s response to the need was deliberately indifferent.”
19 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d
20 1091, 1096 (9th Cir. 2006)).
Turning to Plaintiff‟s complaint, he first contends that on February 18, 2016, he
23 was removed from his cell in ad-seg and escorted to a side hallway, where he was
24 assaulted by four inmates in view of Defendants. He provides no details about the
25 alleged assault, does not identify the inmates responsible or specify who was responsible
26 for which act, and he does not identify which Defendants were present or what they did or
27 did not do to protect him. These allegations fail to state a claim for failure to protect,
28 however Plaintiff will be granted leave to amend.
Plaintiff next contends that after Defendants injected him with methamphetamines,
2 he “appeared” to experience chest pains, but Defendants failed to seek medical attention
3 for several hours. While Plaintiff claims he was in serious need of medical attention, he
4 does not detail how his condition was serious, nor does he allege that Defendants knew
5 of his medical need and deliberately failed to address it. Furthermore, it appears that
6 Plaintiff was in fact transferred to Sonora Regional Hospital that same night, albeit for an
7 unspecified medical reason. Thus, it does not appear that Defendants disregarded
8 Plaintiff‟s need for medical attention. Plaintiff‟s claims in this regard will also be dismissed
9 with leave to amend.
Plaintiff further claims that after he was discharged from the hospital and returned
11 to SCC, Dr. Maddox convinced him to go to a mental health program at PBSP. Plaintiff
12 remained in the program for ten days rather than the promised five. When Plaintiff finally
13 returned to SCC and confronted Dr. Maddox, the psychiatrist sent Plaintiff to the state
14 prison in Folsom. These allegations fail to state a claim. Plaintiff fails to demonstrate that
15 Dr. Maddox‟s actions in sending him to a mental health program demonstrated deliberate
16 indifference to a serious medical need. Furthermore, there is no evidence that the goings17 on at PBSP or elsewhere were attributable to Dr. Maddox or any other named Defendant,
18 nor does Plaintiff describe what, if anything, actually occurred at these other institutions
19 that violated Plaintiff‟s rights. Plaintiff‟s claims pertaining to the administration of mental
20 health treatment will be dismissed with leave to amend.
Plaintiff also complains of his treatment while he was housed at PBSP, alleging
22 that he was denied showers and called a snitch. These vague allegations fail to state a
Plaintiff next complains of his treatment while at CTF, stating he was verbally
25 threatened and that he thinks someone did something to his food. Again, these
26 allegations are too vague and non-specific to state a claim.
Finally, Plaintiff complains that he was placed in a level 3 SNY yard at SVSP, and
28 that officers enlisted other inmates to threaten Plaintiff. Once again, Plaintiff fails to
1 provide sufficient facts to state a claim for inhumane conditions of confinement.
Plaintiff complains that he was placed in a level 3 yard at SVSP when he was in
4 fact a level 2 inmate. He also takes issue with the fact that he was removed from ad-seg
5 involuntarily. It is unclear whether Plaintiff intends to make a Due Process claim;
6 regardless, an inmate does not have a due process or liberty interest in remaining
7 housed in a particular facility or institution. See Meachum v. Fano, 427 U.S. 215, 223-24
8 (1976) (holding that the Due Process Clause does not, in and of itself, protect a duly
9 convicted prisoner against transfer from one institution to another . . . [even if] life in one
10 prison is much more disagreeable than in another.”) Only if Plaintiff were subjected to “an
11 atypical and significant hardship in relation to the ordinary incidents of prison life” would
12 Due Process be implicated. Wilkinson v. Austin, 545 U.S. 209, 221-223 (2005); Sandin
13 v. Connor, 515 U.S. 472, 484 (1995). There is no such allegation here.
In any case, Plaintiff has not alleged how any named Defendant was responsible
15 for Plaintiff‟s housing assignment at SVSP. Plaintiff‟s claims relating to his housing at
16 SVSP will be dismissed.
Prisoners have a “First Amendment right to send and receive mail.” Witherow v.
19 Paff, 52 F.3d 264, 265 (9th Cir. 1995). The censorship of outgoing prisoner mail is
20 justified if the following criteria are met: (1) the regulation furthers “an important or
21 substantial government interest unrelated to the suppression of expression” and (2) “the
22 limitation on First Amendment freedoms must be no greater than is necessary or
23 essential to the protection of the particular governmental interest involved.” Procunier v.
24 Martinez, 416 U.S. 396, 413 (1974) (limited by Thornburgh v. Abbott, 490 U.S. 401, 413–
25 14 (1989), only as test relates to incoming mail).
Here, Plaintiff merely alleges that the CSATF mailroom returned his mail as
27 undeliverable. There are no facts from which the Court can conclude that any individual
28 wrongfully interfered with Plaintiff‟s mail. Furthermore, any issues Plaintiff experienced
1 with his mail while at CSATF are completely unrelated to the actions of Defendants
2 Heisol, Wright, Delgado, and Maddox at SCC. If Plaintiff believes he can make a
3 constitutional claim for interference with his mail, he is advised to bring those claims in a
4 separate suit. Fed. R. Civ. P. 20(a)(2) (a plaintiff may only sue multiple defendants in the
5 same action if at least one claim against each defendant arises out of the same
6 “transaction, occurrence, or series of transactions or occurrences” and there is a
7 “question of law or fact common to all defendants.”); Coughlin v. Rogers, 130 F.3d 1348,
8 1351 (9th Cir.1997); Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371,
9 1375 (9th Cir.1980).
It is well-settled that § 1983 provides for a cause of action against prison officials
12 who retaliate against inmates for exercising their constitutionally protected rights. Pratt v.
13 Rowland, 65 F.3d 802, 806 n. 4 (9th Cir. 1995) (“[R]etaliatory actions by prison officials
14 are cognizable under § 1983.”) Within the prison context, a viable claim of retaliation
15 entails five basic elements: “(1) An assertion that a state actor took some adverse action
16 against an inmate (2) because of (3) that prisoner‟s protected conduct, and that such
17 action (4) chilled the inmate‟s exercise of his constitutional rights, and (5) the action did
18 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
19 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di
20 Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d at 1269.
The second element focuses on causation and motive. See Brodheim v. Cry, 584
22 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a
23 “„substantial‟ or „motivating‟ factor behind the defendant‟s conduct.”
24 Sorrano‟s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can
25 be difficult to establish the motive or intent of the defendant, a plaintiff may rely on
26 circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that
27 a prisoner established a triable issue of fact regarding prison officials‟ retaliatory motives
28 by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108
1 F.3d 265, 267-68 (9th Cir. 1997); Pratt, 65 F.3d at 808 (“timing can properly be
2 considered as circumstantial evidence of retaliatory intent”).
In terms of the third prerequisite, filing a complaint or grievance is constitutionally
4 protected. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).
With respect to the fourth prong, the correct inquiry is to determine whether an
6 official‟s acts “could chill a person of ordinary firmness from continuing to engage in the
7 protected activity.” Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir.
8 2006); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000).
With respect to the fifth prong, a prisoner must affirmatively allege that “„the prison
10 authorities‟ retaliatory action did not advance legitimate goals of the correctional
11 institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson,
12 778 F.2d at 532.
Here, Plaintiff claims he suffered many instances of allegedly retaliatory conduct at
14 several different institutions. For each retaliatory action, however, the Court cannot
15 determine what, if any, protected conduct Plaintiff engaged in prior to each instance of
16 retaliation, or that the actions alleged were in fact adverse in nature, motivated by
17 Plaintiff‟s protected conduct, and were not in furtherance of a legitimate penological
18 purpose. Plaintiff will be granted leave to amend. Should Plaintiff choose to amend, he
19 must limit his claims to those that relate back to the underlying events at SCC or involve
20 the same Defendants. Unrelated instances of retaliation at other institutions involving
21 unrelated individuals belong in a separate suit.
Based on Plaintiff‟s allegations, he may intend to state a claim for conspiracy.
24 Should Plaintiff believe he can make such a claim, the standard is below.
A conspiracy claim brought under Section 1983 requires proof of “„an agreement
26 or meeting of the minds to violate constitutional rights,‟” Franklin v. Fox, 312 F.3d 423,
27 441 (9th Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865
28 F.2d 1539, 1540–41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of
1 constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting
2 Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989)). “„To be
3 liable, each participant in the conspiracy need not know the exact details of the plan, but
4 each participant must at least share the common objective of the conspiracy.‟” Franklin,
5 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).
The federal system is one of notice pleading, and the Court may not apply a
7 heightened pleading standard to Plaintiff's allegations of conspiracy. Empress LLC v. City
8 and County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of
9 Santa Clara, 307 F.3d 1119, 1126 (2002). However, although accepted as true, the
10 “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative
11 level . . . .” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set forth “the
12 grounds of his entitlement to relief[,]” which “requires more than labels and conclusions,
13 and a formulaic recitation of the elements of a cause of action . . . .” Id. (internal
14 quotations and citations omitted). As such, a bare allegation that Defendants conspired
15 to violate Plaintiff's constitutional rights will not suffice to give rise to a conspiracy claim
16 under section 1983.
Plaintiff accuses Defendants of assault and battery, which are state tort claims.
California State Tort Claims
19 Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original
20 jurisdiction, the district court Ashall have supplemental jurisdiction over all other claims in
21 the action within such original jurisdiction that they form part of the same case or
22 controversy under Article III [of the Constitution],@ except as provided in subsections (b)
23 and (c).
A[Once judicial power exists under ' 1367(a), retention of supplemental
24 jurisdiction over state law claims under 1367(c) is discretionary.@ ACI v. Varian Assoc.,
25 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has cautioned that Aif the
26 federal claims are dismissed before trial, . . . the state claims should be dismissed as
27 well.@ United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
California=s Tort Claims Act requires that a tort claim against a public entity or its
1 employees be presented to the California Victim Compensation and Government Claims
2 Board (“the Board”), formerly known as the State Board of Control, no more than six
3 months after the cause of action accrues. Cal. Govt. Code '' 905.2, 910, 911.2, 945.4,
4 950-950.2 (West 2009). Presentation of a written claim, and action on or rejection of the
5 claim are conditions precedent to suit. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d
6 116, 124 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir.
7 1995). To state a tort claim against a public employee, a plaintiff must allege compliance
8 with the Tort Claims Act. State v. Super. Ct., 90 P.3d at 124; Mangold, 67 F.3d at 1477;
9 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). An action
10 must be commenced within six months after the claim is acted upon or is deemed to be
11 rejected. Cal. Govt. Code ' 945.6; Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App.
12 2004). Should Plaintiff believe he can allege compliance with the Tort Claims Act, the
13 standards for the tort claims of assault and battery are below.
Assault and Battery
Under California law, “[a]n assault is an unlawful attempt, coupled with a present
16 ability, to commit a violent injury on the person of another” and “[a] battery is any willful
17 and unlawful use of force or violence upon the person of another.” Cal. Penal Code §
18 240, 242 (West 2005); 5 B. E. Witkin, Summary of California Law, Torts § 346 (9th ed.
For an assault claim under California law, a plaintiff must show that (1) the
20 defendant threatened to touch him in a harmful or offensive manner; (2) it reasonably
21 appeared to the plaintiff that the defendant was about to carry out the threat; (3) the
22 plaintiff did not consent to the conduct; (4) the plaintiff was harmed; and (5) the
23 defendant‟s conduct was a substantial factor in causing the harm. Tekle v. United States,
24 511 F.3d 839, 855 (9th Cir. 2007) (citation omitted). For battery, a plaintiff must show
25 that (1) the defendant intentionally did an act that resulted in harmful or offensive contact
26 with the plaintiff‟s person; (2) the plaintiff did not consent to the contact; and (3) the
27 contact caused injury, damage, loss, or harm to the plaintiff. Id. (citation and quotations
The Prison Litigation Reform Act (“PLRA”) dictates that a prisoner may not recover
Damages for Emotional Injury
3 damages for alleged emotional injuries suffered while in custody without first showing he
4 suffered physical injury. 42 U.S.C. § 1997e(e). While the physical injury need not be
5 significant, it must be more than de minimus. Oliver v. Keller, 289 F.3d 623, 626-27 (9th
6 Cir. 2002).
Here, Plaintiff primarily claims that Defendants‟ actions caused him emotional
8 harm. The only physical injury Plaintiff suffered, however, was as a result of the February
9 18, 2016 assault and excessive force incident; even there, Plaintiff suffered only “scuffed
10 knees” and “scars.” At this juncture, the Court offers no opinion as to whether scuffs and
11 scars constitute more than de minimus injury. However, Plaintiff is advised that to the
12 extent he intends to recover damages for his alleged emotional suffering, such relief is
13 barred by the PLRA absent a showing of physical injury.
Plaintiff‟s complaint will be dismissed for failure to state a claim. The Court will
16 provide Plaintiff with the opportunity to file an amended complaint. If Plaintiff amends, his
17 complaint must be short and may only present the facts necessary to support his claims.
18 Furthermore, he may only allege claims that (a) arise out of the same transaction,
19 occurrence, or series of transactions or occurrences, and (b) present questions of law or
20 fact common to all Defendants named therein. Fed. R. Civ. P. 20(a)(2). Plaintiff must file
21 individual actions for unrelated claims against unrelated Defendants.
If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but
23 under section 1983, it must state what each named defendant did that led to the
24 deprivation of Plaintiff‟s constitutional rights and liability may not be imposed on
25 supervisory personnel under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77.
26 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to
27 relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supersedes the original complaint, Lacey v.
1 Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be
2 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220.
Accordingly, it is HEREBY ORDERED that:
Plaintiff‟s complaint (ECF No. 1) is DISMISSED with leave to amend;
The Clerk‟s Office shall send Plaintiff a blank complaint form along with a
copy of the complaint filed January 9, 2017;
Within thirty (30) days from the date of service of this order, Plaintiff must
a. File an amended complaint curing the deficiencies identified by the
Court in this order, or
b. File a notice of voluntary dismissal; and
If Plaintiff fails to comply with this order, the Court will dismiss this action for
failure to state a claim, failure to obey a court order, and failure to
IT IS SO ORDERED.
February 10, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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