Harris v. Quillen et al

Filing 5

ORDER Requiring Plaintiff to File an Amended Complaint or Notify the Court of Intent to Proceed on Claims Found to be Cognizable,signed by Magistrate Judge Stanley A. Boone on 10/19/17. ( Amended Complaint due 30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,

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Plaintiff,
v.
T. QUILLEN, et al.,
Defendants.

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Case No.: 1:17-cv-01370-SAB (PC)
ORDER REQUIRING PLAINTIFF TO FILE AN
AMENDED COMPLAINT OR NOTIFY THE
COURT OF INTENT TO PROCEED ON CLAIMS
FOUND TO BE COGNIZABLE
[ECF No. 1]

Plaintiff Devonte B. Harris is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s complaint, filed on October 12, 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 “fail[] to state a claim on which relief may be granted,” or that “seek[]

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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 entitled

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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the

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deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 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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In December 2012, Plaintiff was incarcerated at California State Prison, Corcoran and housed

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in the Security Housing Unit (SHU). A. Belnap served Plaintiff written notification that he was going

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to Institutional Classification Committee (ICC) for a SHU annual review to determine whether he

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would be retained in the SHU. California Department of Corrections and Rehabilitation (CDCR)

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policy requires 72-hour written notice before adverse ICC action can be taken against a prisoner.

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CDCR policy allowed ICC to designate inmates who received two or more serious rule violation

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reports in a six month period as a “program failure.” ICC can make program failures send their

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appliances home or subject to disposal. Plaintiff did not receive notice that he was being considered

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for program failure.

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On December 19, 2012, Quillen and Hurtado went to Plaintiff’s cell, handcuffed him behind

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his back and escorted him to a conference room for ICC. The ICC members consisted of Sandor,

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Molina, Thomas and Bugarin. During ICC, Plaintiff requested review of his central file to exercise his

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First Amendment right to pursue litigation against prison officials. Sandor retorted, he did not know

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how Plaintiff was going to do that being a pervert. Plaintiff responded that he was not just a pervert,

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he was a legal expert.

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In retaliation, ICC engaged in adverse action by making Plaintiff dispose of all his personal

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property, except legal material related to active cases. ICC members abused the program failure

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procedure as a cover and ruse to silence and punish Plaintiff for pursing litigation against prison

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officials.

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On December 19, 2012, after Plaintiff’s ICC hearing, Quillen and Hurtado placed Plaintiff in a

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holding cage in the rotunda of the housing unit. Quillen, Hurtado, Carranza, Alvarado and Perez then

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went to Plaintiff’s cell and removed all of his personal and legal property. Plaintiff refused to be

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placed back into his cell since ICC exempted his legal property and staff took it anyway. Molina then

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directed staff to place seven cubic feet of Plaintiff’s legal property back in his cell, which they did

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indiscriminately. Quillen and another officer escorted Plaintiff back to his cell. However, Plaintiff

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noticed that legal material he needed for an impeding deadline was missing and Plaintiff asked Quillen

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to do an exchange for it. When Quillen refused, Plaintiff refused to relinquish his handcuffs and was

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secured in his cell.

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Quillen seized Plaintiff and tried to pull him by the handcuffs through the tray slot of the cell

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door. Plaintiff freed himself from Quillen and retreated to safety in the back of the cell, where he

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requested the presence of a sergeant. Quillen summoned officers Carranza, Alvarado, Hurtado, Perez

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and motion for Magana who was in the control booth to open Plaintiff’s cell door. Quillen entered

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Plaintiff’s cell first, shaking his pepper spray canister while pointed at Plaintiff’s face. Plaintiff turned

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his back to Quillen to prevent a direct pepper spray burst to his face. Officers then seized Plaintiff’s

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handcuffs, attached a security triangle and dragged him out of the cell. They threw Plaintiff against

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the adjacent cell door and began kicking Plaintiff. Plaintiff was then pushed back into the cell and the

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handcuffs were removed.

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Approximately ten minutes later, pysch tech J. Pratt arrived at Plaintiff’s cell to conduct a

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medical evaluation and Plaintiff advised him regarding the use of excessive force. Later that night,

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Plaintiff gave officer P. DeOchoa an interview requested to provide to the sergeant which he did. The

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sergeant should have verbally notified the incident commander and a videotape interview documenting
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Plaintiff’s injuries should have been conducted within twenty-eight hours. Sergeant J. Nail returned

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Plaintiff’s interview request unanswered.
On December 19, 2012, December 20, 2012, December 22, 2012 and December 24, 2012,

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Plaintiff submitted claims regarding the use of force and requested medical treatment.
On December 20, 2012, Plaintiff submitted an administrative appeal which included a request

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for a videotape interview. On December 24, 2012, Registered Nurse J. Faldon treated Plaintiff’s wrist

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injury and prescribed 200 milligrams of Ibuprofen.
On January 12, 2013, Molina conducted a videotape excessive force interview documenting

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Plaintiff’s injuries, well after they had significantly healed and were barely visible.

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III.

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DISCUSSION

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A.

Retaliation

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“Prisoners have a First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the

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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d

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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Based on Plaintiff’s allegations in the complaint, Plaintiff states a cognizable retaliation claim

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against Defendants Sandor, Molina, Thomas and Bugarin for confiscating and disposing of his

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personal and legal property because he pursued litigation against prison officials.

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B.

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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Factors that can be considered are “the need for the application of force, the relationship

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between the need and the amount of force that was used, [and] the extent of injury inflicted.” Whitley

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v. Albers, 475 U.S. 312, 321 (1986). Although the extent of the injury is relevant, the inmate does not

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need to sustain serious injury. Hudson, 503 U.S. at 7; Wilkins, 559 U.S. at 37-38. The Eighth

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Amendment’s prohibition on cruel and unusual punishments necessarily excludes from constitutional

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recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10.

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Based on Plaintiff’s allegations in the complaint, Plaintiff states a cognizable excessive force
claim against Defendants Quillen, Carranza, Alvarado, Hurtado, Perez and Magana.

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C.

Deprivation of Personal Property

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To the extent Plaintiff is attempting to state a claim under the Due Process Clause, he fails to

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state a cognizable claim for relief. The Fourteenth Amendment’s Due Process Clause protects persons

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against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection

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must establish that one of these interests is at stake. Wilkinson, 545 U.S. at 221 (quotation marks

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omitted). The Due Process Clause is not violated by the random, unauthorized deprivation of property

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so long as the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517,
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533 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). In this instance, Plaintiff has

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alleged an unauthorized deprivation of his personal and legal property, and Plaintiff has an adequate

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post-deprivation remedy under California law and therefore, he may not pursue a due process claim

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arising out of the unlawful confiscation of his personal property. Barnett, 31 F.3d at 816-17 (citing

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Cal. Gov’t Code §§ 810-895).

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D.

Violation of CDCR Regulations/Policy

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“[W]hen a violation of state law causes the deprivation of a right protected by the United States

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Constitution, that violation may form the basis for a Section 1983 action.” Lovell v. Poway Unified

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School Dist., 90 F.3d 367, 370 (9th Cir. 1996) (citation omitted). “However, Section 1983 limits a

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federal court’s analysis to the deprivation of rights secured by the federal Constitution and laws,” and

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“[t]o the extent that the violation of a state law amounts to the deprivation of a state-created interest

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that reaches beyond that guaranteed by the federal Constitution, section 1983 offers no redress.”

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Lovell, 90 F.3d at 370-71 (citation and internal quotation marks omitted). In addition, conduct may

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violate a written policy without violating the Constitution. See Walker v. Sumner, 14 F.3d 1415,

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1419-20 (9th Cir. 1994) (federal due process is not implicated when prison officials fail to comply

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with state procedural protections that are more generous than those that are constitutionally mandated),

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overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Myers v. Klevenhagen,

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97 F.3d 91, 94 (5th Cir. 1996) (“[A] prison official’s failure to follow the prison’s own policies,

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procedures, and regulations does not constitute a violation of due process, if constitutional minima are

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nevertheless met.”). Thus, the mere violation of a prison rule or regulation does not necessarily

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establish a constitutional violation. Accordingly, Plaintiff fails to state a cognizable claim for relief

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for an alleged violation of a CDCR regulation and/or policy.

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E.

Declaratory Relief

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“A declaratory judgment, like other forms of equitable relief, should be granted only as a

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matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood

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Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a

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useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and

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afford relief from the uncertainty and controversy faced by the parties.” United States v. Washington,
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759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a

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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were

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violated. Accordingly, a declaration that any defendant violated Plaintiff’s rights is unnecessary in

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this action.

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IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint states a cognizable claim against Defendants Sandor, Molina, Thomas

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and Bugarin for retaliation in violation of the First Amendment and against Defendants Quillen,

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Carranza, Alvarado, Hurtado, Perez and Magana for excessive force in violation of the Eighth

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Amendment. However, Plaintiff has not sufficiently alleged facts to state any other cognizable claims

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or claims against any other defendant. The Court will provide Plaintiff with the opportunity to file an

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amended complaint to cure the deficiencies identified by the Court in this order. Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new,

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unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only

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against Defendants Sandor, Molina, Thomas and Bugarin for retaliation and against Defendants

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Quillen, Carranza, Alvarado, Hurtado, Perez and Magana for excessive force, Plaintiff may so notify

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the Court in writing, and the Court will dismiss the other defendants and claims, and will forward

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Plaintiff ten (10) summons and ten (10) USM-285 forms for completion and return. Upon receipt of

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the forms, the Court will direct the United States Marshal to initiate service of process.

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If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’” “a complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.

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at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:

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a.

File an amended complaint curing the deficiencies identified by the Court in this order,
or

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b.

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Notify the Court in writing that he does not wish to file an amended complaint and

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wishes to proceed only against Defendants Sandor, Molina, Thomas and Bugarin for

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retaliation and against Defendants Quillen, Carranza, Alvarado, Hurtado, Perez and

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Magana for excessive force; and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.

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IT IS SO ORDERED.

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Dated:

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October 19, 2017
UNITED STATES MAGISTRATE JUDGE

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