Hunter v. Herrera et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Action Proceed on Plaintiff's Claim for Excessive Force and Dismissing Declaratory and Injunctive Relief re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 9/14/2017. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NATHAN HUNTER,
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Plaintiff,
v.
G. HERRERA, et al.,
Defendants.
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Case No.: 1:17-cv-01163-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING ACTION PROCEED ON
PLAINTIFF’S CLAIM FOR EXCESSIVE FORCE
AND DISMISSING DECLARATORY AND
INJUNCTIVE RELIEF
[ECF No. 1]
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Plaintiff Nathan Hunter is appearing pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction on
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September 11, 2017; therefore, this matter has been referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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Currently before the Court is Plaintiff’s complaint, filed August 30, 2017.
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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
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On June 17, 2017, at approximately 9:45 a.m. at Wasco State Prison, officer M. Martinez
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ordered Plaintiff out of the mental health group based on the false accusation of disruption of the
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group. Once the Plaintiff was out in the walkway of the facility and prone out in the front of the
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sergeant’s office and requested to speak with the on duty sergeant.
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Officer T. Priest placed Plaintiff in handcuffs and told him to not speak to anybody. When
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sergeant G. Herrera stepped out of her office, officer T. Priest got Plaintiff roughly to his feet and
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pushed the handuffs up over the Plaintiff’s head, making the Plaintiff head down over his wrist. After
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Plaintiff asked T. Priest to stop pushing up the handcuffs, Priest, without warning, picked up Plaintiff
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and slammed his face to the concrete ground. Officers M. Martinez, T. Priet, and E. Buenostro then
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started jumping and kicking Plaintiff’s face striking his face with their closed fists. Sergeant G.
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Herrera then ordered officer E. Buenostro to take Plaintiff to a holding cell. When officer Buenostro
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took Plaintiff to the holding cell, he slammed Plaintiff’s face to the back of the cell. At no time did,
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sergeant Herrera order Defendants to stop the use of force.
Plaintiff was later issued a rules violation report for assault to “cover up the unnecessary use of
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force.”
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III.
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DISCUSSION
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A.
Excessive Force Claim
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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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Based on Plaintiff’s allegations in the complaint, Plaintiff states a cognizable claim for
excessive force against Defendants G. Herrera, M. Martinez, T. Priest, and E. Buenostro.
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B.
Declaratory and Injunctive Relief
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In addition to money damages, Plaintiff seeks declaratory and injunctive relief. “‘A case or
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controversy exists justifying declaratory relief only when the challenged government activity is not
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contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts
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what may well be a substantial adverse effect on the interests of the petitioning parties.’” Feldman v.
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Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Headwaters, Inc. v. Bureau of Land Management,
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Medford Dist., 893 F.2d 1012, 1015 (9th Cir. 1989) (internal quotations and citation omitted)).
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“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and
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settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty
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and controversy faced by the parties.” U.S. v. State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985)
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(citations omitted). The conduct at issue in this action occurred on June 17, 2017, and Plaintiff’s
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remedy is damages should he prevail on his claim that his constitutional rights were violated. The
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Court recommends dismissal of the declaratory relief claim.
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Plaintiff also seeks an injunction directing that Defendants to re-take all use of force classes.
“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold
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requirement imposed by Article III of the Constitution by alleging an actual case or controversy.”
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City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (citations omitted); Jones v. City of Los
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Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). “Abstract injury is not enough.” Lyons, 461 U.S. at
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101. “[P]laintiff must show that he has sustained or is immediately in danger of sustaining some direct
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injury as the result of the challenged official conduct and the injury or threat of injury must be both
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real and immediate, not conjectural or hypothetical.” Id. (internal quotations and citations omitted).
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“The key issue is whether the plaintiff is ‘likely to suffer future injury.’” Jones, 444 F.3d at 1126
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(quoting Lyons, 461 U.S. at 105). Furthermore, any award of equitable relief is governed by the
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Prison Litigation Reform Act, which provides in relevant part, “Prospective relief in any civil action
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with respect to prison conditions shall extend no further than necessary to correct the violation of the
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Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective
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relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to
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correct the violation of the Federal right, and is the least intrusive means necessary to correct the
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violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
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The Court cannot issue a preliminary injunction ordering Defendants to re-take the use of force
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classes as it is not within its jurisdiction nor is it narrowly drawn to remedy the alleged use of
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excessive force. In addition, Plaintiff’s claims for declaratory and injunctive relief are moot because
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Plaintiff is presently incarcerated at California State Prison, Sacramento, not Wasco State Prison-
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Reception Center where the alleged actions took place. Plaintiff’s subsequent transfer out of Wasco
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State Prison rendered moot any prayer for declaratory and injunctive relief. Because it is clear that
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Plaintiff cannot cure these deficiencies through amendment,1 the Court recommends that Plaintiff’s
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prayer for declaratory and injunctive relief should be dismissed from the action, and this action
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proceed on Plaintiff excessive force claim for monetary damages only.
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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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This action shall proceed on Plaintiff’s claim for monetary damages based on the
alleged use of excessive force; and
Plaintiff’s prayer for declaratory and injunctive relief be dismissed from the action.
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2.
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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, Plaintiff 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.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
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(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:
September 14, 2017
UNITED STATES MAGISTRATE JUDGE
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See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend when
amendment would be futile.”)
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