(PC) Harris v. Neve

Filing 55

ORDER GRANTING 52 Request for Screening; FINDINGS and RECOMMENDATIONS recommending that the Claims in Plaintiff's complaint be Dismissed, except for the claims of retaliation and excessive force, pursuant to 42:1983 re 51 Amended Prisoner Civil Rights Complaint ; referred to Judge Ishii, signed by Magistrate Judge Jennifer L. Thurston on 9/7/2021.(Objections to F&R due within 21-Day Deadline) (Martin-Gill, S)

Case 1:19-cv-01338-AWI-JLT Document 55 Filed 09/08/21 Page 1 of 7

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARNEST S. HARRIS,

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Plaintiff,

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v.

ORDER GRANTING DEFENDANT’S
REQUEST FOR SCREENING
(Doc. 52)

D. NEVE,

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Case No. 1:19-cv-01338-AWI-JLT (PC)

Defendant.

FINDINGS AND RECOMMENDATIONS
TO DISMISS CERTAIN CLAIMS

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(Doc. 51)

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21-DAY DEADLINE

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On July 13, 2021, the Court granted Plaintiff leave to file a third amended complaint.

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(Doc. 47.) Plaintiff filed a third amended complaint on August 10, 2021. (Doc. 51.) Defendant

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requests that the Court screen the complaint. (Doc. 52.) Because screening is mandatory under 28

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U.S.C. § 1915A(a), the Court grants Defendant’s request.
Upon screening, the Court finds that Plaintiff’s third amended complaint states cognizable

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claims of retaliation and excessive force, but its remaining claims are not cognizable. Because

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Plaintiff has received three opportunities to amend, the Court finds that further amendment would

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be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Therefore, the Court

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recommends that the non-cognizable claims be dismissed.

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Case 1:19-cv-01338-AWI-JLT Document 55 Filed 09/08/21 Page 2 of 7

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I.

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 an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious,

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fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant

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who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if

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it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal

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theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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II.

PLEADING REQUIREMENTS

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A. Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain

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“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

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Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the

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plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal

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quotation marks and citation omitted).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must

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set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as

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true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

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The Court construes pleadings of pro se prisoners liberally and affords them the benefit of

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any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the

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liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal

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theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation

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of a civil rights complaint may not supply essential elements of the claim that were not initially

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pled,” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal
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quotation marks and citation omitted), and courts “are not required to indulge unwarranted

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inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation

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marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s

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liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

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B. Linkage and Causation

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Section 1983 provides a cause of action for the violation of constitutional or other federal

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rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under

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section 1983, a plaintiff must show a causal connection or link between the actions of the

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defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode,

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423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative

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act, participates in another’s affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978) (citation omitted).

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III.

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PLAINTIFF’S FACTUAL ALLEGATIONS
Plaintiff was incarcerated at California State Prison, Corcoran. (See Doc. 51.) He alleges

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Defendant-Correctional Officer Neve refused to provide him meals on two occasions and “st[ole]

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the snacks out of [his] lunches” over the span of a month in retaliation for his filing lawsuits and

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“numerous . . . grievances.” (Id. at 4, 6-7.) Plaintiff alleges that, “on several occasions,”

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Defendant made such comments as, “this one (the Plaintiff) likes to file 602’s against me, we’ll

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see how that[’s] going to work out for him.” (Id. at 4.)

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Plaintiff alleges that on August 24, 2018, Defendant walked past his door and refused to

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provide him a meal tray while serving meals to other inmates. (Id. at 4-5.) Plaintiff states that

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when he alerted him, Defendant replied that he would not feed Plaintiff because Plaintiff was

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going to court. (Id. at 5.) When Plaintiff told Defendant that he did not have court that day,

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Defendant ignored him. (Id.) Plaintiff states that he “suffered se[vere] stomach pain and

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dizz[iness] from not being” fed. (Id.) Plaintiff filed a grievance regarding the incident. (Id.)
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Plaintiff did not see Defendant again until June of 2019. (Id.) Plaintiff alleges that on June

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30, 2019, Defendant walked up to Plaintiff’s cell, showed Plaintiff his meal tray, then threw the

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food into the garbage. (Id.) Plaintiff states that he again suffered stomach pain and dizziness for

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missing the meal, and he visited a nurse regarding these symptoms. (Id. at 6.) Plaintiff says he

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“lived in fear” if he continued to file grievances against Defendant, but he nevertheless filed

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another grievance for the incident. (Id.)

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Between May and June of 2018, Plaintiff alleges Defendant applied handcuffs on him

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excessively tight on three occasions. (Id. at 8-9.) On the third occasion, Plaintiff alleges he told

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Defendant that the handcuffs were “stopping the blood flow from [his] wrist and [that he] felt

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faint,” but that Defendant replied, “‘that’s what happens to inmates who file lawsuits.’” (Id. at 9.)

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Plaintiff states that the resulting pain, redness, and swelling lasted two to three days. (Id.)

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IV.

DISCUSSION

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A. Conditions of Confinement

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“It is undisputed that the treatment a prisoner receives in prison and the conditions under

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which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney,

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509 U.S. 25, 31 (1993). “[P]rison officials must ensure that inmates receive adequate food,

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clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of .

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. . inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citations

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omitted).
“In order to establish . . . [an Eighth Amendment] violation, [p]laintiffs must satisfy both

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the objective and subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744

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(9th Cir. 2002) (citation omitted). First, plaintiffs must show that their alleged deprivation is

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“sufficiently serious.” Farmer, 511 U.S. at 834 (internal quotation marks and citation omitted).

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To be sufficiently serious, the “prison official’s act or omission must result in the denial of ‘the

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minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337,

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347 (1981)). Second, plaintiffs must show that the prison official was deliberately indifferent to

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their health or safety. Farmer, 511 U.S. at 834.

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Plaintiff’s allegations regarding his meals do not satisfy the first, objective prong. Plaintiff

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alleges Defendant refused to provide him meals on two occasions and took snacks out of his

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lunches. (Doc. 51 at 4-7.) These deprivations are not sufficiently serious to implicate the Eighth

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Amendment. The Ninth Circuit has held, for example, that “food occasionally contain[ing]

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foreign objects or sometimes [being] served cold, while unpleasant, does not amount to a

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constitutional deprivation.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (internal

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quotation marks and citation omitted). Likewise, Defendant’s alleged refusal to provide Plaintiff

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two meals over the span of ten months, or his alleged removal of snacks from Plaintiff’s lunches,

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is not sufficiently serious to violate the Eighth Amendment. See Foster v. Runnels, 554 F.3d 807,

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812 n.1 (9th Cir. 2009) (denial of two meals over the span of two months did “not appear to rise

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to the level of a constitutional violation”); See Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir.

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2005) (“circumstances, nature, and duration of a deprivation of [ ] necessities must be considered

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in determining whether a constitutional violation has occurred”) (internal quotation marks and

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citation omitted). Plaintiff’s allegations regarding his meals fail to rise to the level of cruel and

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unusual punishment.

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B. Excessive Force

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The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and

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unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and

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citation omitted). As courts have observed, “[p]ersons are sent to prison as punishment, not for

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punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. Iowa) (quoting Battle v. Anderson,

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564 F.2d 388, 395 (10th Cir. 1977)) (citation omitted). “Being violently assaulted in prison is

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simply not part of the penalty that criminal offenders pay for their offenses against society.”

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Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citation omitted).

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A correctional officer engages in excessive force in violation of the Cruel and Unusual

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Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances,

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and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith

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effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). In other

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words, “whenever prison officials stand accused of using excessive physical force . . ., the core
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judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore

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discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7

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(1992). In making this determination, courts may consider “the need for application of force, the

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relationship between that need and the amount of force used, the threat reasonably perceived by

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the responsible officials, and any efforts made to temper the severity of a forceful response.” Id.

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at 7. Courts may also consider the extent of the injury suffered by the prisoner. Id. However, the

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absence of serious injury is not determinative. Id.

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Plaintiff states cognizable claims of excessive force. He alleges Defendant applied

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handcuffs on him excessively tight and that when he informed Defendant that he felt faint,

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Defendant replied, “that’s what happens to inmates who file lawsuits . . .” (Doc. 51 at 8-9). These

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allegations are sufficient to show that the amount of force used was excessive and unnecessary

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and intended to cause harm, not to maintain security.

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C. Retaliation

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A claim of First Amendment retaliation has five elements. Watison v. Carter, 668 F.3d

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1108, 1114 (9th Cir. 2012). First, a plaintiff must allege that he engaged in protected activity. Id.

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For example, filing an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th

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Cir. 2005), as is the right to access the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977); see

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also Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that

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the defendant took adverse action against him. Watison, 668 F.3d at 1114 (citation omitted).

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“Third, the plaintiff must allege a causal connection between the adverse action and the protected

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conduct.” Id. In other words, the plaintiff must claim the defendant subjected him to an adverse

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action because of his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the

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plaintiff must allege that the official’s acts would chill or silence a person of ordinary firmness

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from future [protected] activities.” Watison, 668 F.3d at 1114 (internal quotation marks and

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citation omitted). “Fifth, the plaintiff must allege ‘that the prison authorities’ retaliatory action did

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not advance legitimate goals of the correctional institution. . .’” Id. (quoting Rizzo, 778 F.2d at

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532).

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Plaintiff’s allegations establish cognizable retaliation claims. Plaintiff alleges that he
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engaged in protected conduct, i.e., filing inmate grievances and lawsuits, and that Defendant took

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adverse action against him because he engaged in such conduct, i.e., applying handcuffs on him

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excessively tight on three occasions, refusing to provide him meals on two occasions, and taking

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snacks or “food items out of . . . lunches” over the span of a month. (Doc. 51 at 4-9.) Plaintiff

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does not allege that Defendant’s actions chilled his speech, since he continued to filed grievances.

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(See id. at 6.) However, Plaintiff alleges that he was harmed, and “harm that is more than minimal

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will almost always have a chilling effect.” Rhodes, 408 F.3d at 562.

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V.

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CONCLUSION, ORDER, AND RECOMMENDATION
For the reasons set forth above, the Court GRANTS Defendant’s request for screening

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(Doc. 52). The Court finds that Plaintiff’s third amended complaint (Doc. 51) states cognizable

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claims of retaliation and excessive force, but that its remaining claims are not cognizable. Given

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Plaintiff’s three opportunities to amend, further amendment would be futile. See Akhtar v. Mesa,

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698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court RECOMMENDS that the

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claims in Plaintiff’s complaint be DISMISSED, except for the claims of retaliation and excessive

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force, pursuant to 42 U.S.C. § 1983.

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

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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of

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service of these Findings and Recommendations, Plaintiff may file written objections with the

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Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

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waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 7, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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