Cruz v. Savioe

Filing 12

FINDINGS and RECOMMENDATIONS recommending that this action proceed on Plaintiff's First Amendment retaliation claim against Defendant Savoie; Plaintiff's request for injunctive relief be denied; all other claims be dismissed from this action re 11 Amended Prisoner Civil Rights Complaint filed by Guillermo Trujillo Cruz ; referred to Judge Drozd,signed by Magistrate Judge Barbara A. McAuliffe on 05/24/18. Objections to F&R due by 6/11/2018 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,

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Plaintiff,

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Case No. 1:17-cv-01474-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS

v.
(ECF No. 11)
S. SAVOIE,
FOURTEEN-DAY DEADLINE

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Defendant.

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Plaintiff Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action under 42 U.S.C. § 1983. On May 11, 2018, the Court

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screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 10.) Plaintiff’s first

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amended complaint, filed on May 21, 2018, is currently before the Court for screening. (ECF No.

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11.)

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I.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

Screening Requirement and Standard

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relief from a defendant who is immune from such relief.

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1915(e)(2)(B)(ii).

28 U.S.C. §§ 1915A(b);

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

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Pelican Bay State Prison in Crescent City, California. The

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events in the complaint are alleged to have occurred while Plaintiff was housed at Kern Valley

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State Prison (“KVSP”). Plaintiff names Correctional Officer S. Savoie, a KVSP employee, as the

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sole defendant in this action.

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Claim I

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In Claim I, Plaintiff alleges that on April 7, 2016, Officer Savoie verbally sexually

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harassed him during third watch security bunk checks and mail pass out.

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reportedly tried to get Plaintiff to expose his genitals. On the following day, April 8, 2016,

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Officer Savoie again tried to get Plaintiff to expose himself to her during afternoon showers,

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telling Plaintiff that she wanted to see his penis and to take off his boxer shorts. Once Officer

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Savoie knew that Plaintiff was not complying with her requests, she started to foment false

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rumors to her co-worker, Officer I. Ruiz, that Plaintiff exposed himself to her. Plaintiff believes
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Officer Savoie

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that Officer Savoie’s request to expose himself was for the purpose of blackmailing him and

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manipulating his program.

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On April 22, 2016, Plaintiff filed a grievance against Officer Savoie for sexual

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misconduct. At the 602 hearing, Officer Savoie denied all allegations against her. Plaintiff then

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made a formal request to the I.S.U. unit at KVSP to conduct a polygraph examination of Officer

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Savoie. Plaintiff also became aware that Lt. Moreno and Sgt. J. Melvin, who were designated to

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investigate the complaint, did not report the incident or information to the office of Inspector

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General or the Office of Internal Affairs.

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Claim II

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In Claim II, Plaintiff alleges retaliation in violation of his First Amendment rights. In

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relevant part, Plaintiff contends that on April 27, 2016, Officer Savoie retaliated against him for

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filing a 602 grievance against her for staff sexual harassment. On that date, Officer Savoie

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allegedly filed a false Rule Violation Report against Plaintiff for overfamiliarity with staff.

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Plaintiff asserts that Officer Savoie knew that if a Southern Hispanic inmate was falsely accused

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of any sex crime or similar infraction, then that inmate could be considered a “no good” Southern

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Hispanic and could be targeted in any general population.

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immediately transferred from KVSP to High Desert State Prison because of Officer Savoie’s

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request for Plaintiff’s and assertions that Plaintiff’s behavior and statements made her feel unsafe

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with Plaintiff on the facility. Plaintiff was assaulted at High Desert State Prison with deadly

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weapons. Plaintiff alleges that Officer Savoie reportedly knew that the Rule Violation Report

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would get Plaintiff targeted and assaulted.

Plaintiff further asserts he was

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Claim III

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In Claim III, Plaintiff contends that Officer Savoie used excessive force against him in

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violation of the Eighth Amendment. In relevant part, Plaintiff alleges that on July 24, 2016, he

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was transferred from KVSP to North Kern Valley State Prison due to Officer Savoie’s allegedly

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false statements in the Rule Violation Report.

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On August 1, 2016, Plaintiff arrived at High Desert State Prison. On August 11, 2016,

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Plaintiff was the target of an assault with deadly weapons “behind Officer Savoie’s false written
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statements” in Rule Violation Report. Plaintiff was stabbed multiple times to the facial area, the

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right side of the neck area and his hands and arms. After the assault, Plaintiff was air lifted via

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helicopter to an outside hospital. Plaintiff believes that Officer Savoie should be held liable for

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the injuries he sustained as she falsely accused him of a sex crime or similar infraction that got

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him targeted for an assault with deadly weapons. Plaintiff alleges that Officer Savoie knew the

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substantial risk of serious harm she had placed him in and acted with deliberate indifference.

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Requested Relief

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Plaintiff seeks injunctive relief, along with compensatory and punitive damages.

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III.

Discussion

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A. Eighth Amendment – Verbal Sexual Harassment

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Plaintiff’s allegations regarding sexual harassment implicate the Eighth Amendment to the

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United States Constitution, not the Fourth Amendment. Sexual harassment or abuse of an inmate

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by a prison official is a violation of the Eighth Amendment. Wood v. Beauclair, 692 F.3d 1041,

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1046 (9th Cir. 2012). However, the Eighth Amendment’s protections do not generally extend to

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mere verbal sexual harassment. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004);

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Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997) (affirming summary judgement in favor of

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prison officials where “the only arguably sexually harassing conduct… was verbal”); Blacher v.

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Johnson, 517 Fed.Appx. 564 (9th Cir. 2013) (finding that Eighth Amendment’s protections did

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not extend to mere verbal sexual harassment) (citation omitted).

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Plaintiff has failed to state a cognizable Eighth Amendment claim based on allegations of
verbal sexual harassment. Plaintiff has been unable to cure this deficiency by amendment.

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B. Retaliation – False Report

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Generally, a prisoner’s claims based on allegations that prison officials filed false

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disciplinary charges, standing alone, does not state a constitutional claim. See Sprouse v.

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Babcock, 870 F.2d 450, 452 (8th Cir. 1989). However, the Ninth Circuit has held that the filing

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of a disciplinary charge against a prisoner, although otherwise not actionable under section 1983,

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is “actionable under section 1983 if done in retaliation for [the prisoner] having filed a grievance

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pursuant to established procedures. Id.
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Plaintiff alleges that he filed a 602 grievance against Officer Savoie for sexual misconduct

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on April 22, 2016, and that Officer Savoie denied all allegations against her in the 602 hearing.

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After Plaintiff filed his grievance, Officer Savoie then filed a false Rule Violation Report against

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Plaintiff on April 27, 2016, in retaliation for filing the 602 grievance against her. At the pleading

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stage, Plaintiff states a cognizable section 1983 claim based on the issuance of an allegedly false

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disciplinary report in retaliation for his filing of a 602 against her.

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C. Excessive Force

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Plaintiff attempts to assert an excessive force claim against Officer Savoie based on an

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attack Plaintiff suffered at the hands of other inmates at High Desert State Prison. However, the

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Court instead construes Plaintiff’s excessive force claim as one for failure to protect him from

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violence at the hands of other inmates in violation of the Eighth Amendment.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Prison officials must provide prisoners with food, clothing, shelter, sanitation, medical

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care and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.2000). Prison officials

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have a duty under the Eighth Amendment to protect prisoners from violence at the hands of other

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prisoners because being violently assaulted in prison is simply not part of the penalty that

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criminal offenders pay for their offenses against society. Farmer v. Brennan, 511 U.S. 825,

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83334, 114 S.Ct. 1970, 28 L.Ed.2d 811 (1994); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th

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Cir.2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005). However, prison officials are

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liable under the Eighth Amendment only if they demonstrate deliberate indifference to conditions

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posing a substantial risk of serious harm to an inmate; and it is well settled that deliberate

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indifference occurs when an official acted or failed to act despite his knowledge of a substantial

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risk of serious harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at

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1040.

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Here, Plaintiff fails to adequately allege that Officer Savoie knew of any specific risk of

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harm to Plaintiff from an assault by other prisoners at High Desert State Prison. Plaintiff’s

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conclusory assertions are not sufficient to state a cognizable claim. Further, there is no indication
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that prisoners at High Desert State Prison knew that Plaintiff had received a Rules Violation

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Report for overfamiliarity with staff or that the assault was a result of such information. Plaintiff

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has been unable to cure the deficiencies of this claim.

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D. Injunctive Relief

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In addition to monetary damages, Plaintiff seeks injunctive relief. However, any request

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for such relief is now moot. Plaintiff is no longer housed at Kern Valley State Prison (or High

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Desert State Prison), where he alleges the incidents at issue occurred. Therefore, any injunctive

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relief he seeks against Officer Savoie at Kern Valley State Prison is moot. See Andrews v.

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Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive relief

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generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.

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1991) (per curiam) (holding claims for injunctive relief “relating to [a prison's] policies are moot”

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when the prisoner has been moved and “he has demonstrated no reasonable expectation of

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returning to [the prison]”)).

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IV.

Conclusion and Recommendation

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The Court finds that Plaintiff has stated a cognizable First Amendment retaliation claim

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against Defendant Savoie, but has failed to state any other cognizable claims. Despite being

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provided with the relevant legal and pleading standards, Plaintiff has been unable to cure the

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remaining deficiencies in his complaint, and further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, it is HEREBY RECOMMENDED as follows:

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This action proceed on Plaintiff’s First Amendment retaliation claim against

Defendant Savoie;

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Plaintiff’s request for injunctive relief be denied; and

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All other claims be dismissed from this action.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (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.
Dated:

/s/ Barbara

May 24, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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