Chavez v. California Department of Corrections and Rehabilitation, et al.

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/12/2016 RECOMMENDING plaintiff's 1 complaint be dismissed; and this case be closed. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO CHAVEZ,

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No. 2:16-cv-0520 WBS CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECITONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

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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 upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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The court has conducted the required screening with respect to plaintiff’s complaint.

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Plaintiff seeks damages against four defendants: the California Department of Corrections

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and Rehabilitation (CDCR), George Guirgino, Juan Granadoz, and M. Barnett. CDCR is immune
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under the Eleventh Amendment from any § 1983 claim for damages. Will v. Michigan Dept. of

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State Police, 491 U.S. 58, 66 (1989). Plaintiff sues the other three defendants in their official

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capacity as officers for the CDCR. However, suits against state officials in their official

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capacities are essentially suits against the state for which they work. Id. at 71. Accordingly, the

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Eleventh Amendment again bars suit.

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Plaintiff also sues defendants Granadoz, Guirgino and Barnett as individuals. The events

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which form the basis of plaintiff’s claims include an attack upon plaintiff by an inmate named

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Barrera at California State Prison, Solano on February 10, 2010, and the use of pepper spray on

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plaintiff by defendant Granadoz later that day.

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With respect to defendant Guirgino, former CDCR Director of Adult Institutions, plaintiff

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fails to point to any facts which reasonably suggest he had any direct involvement in any of the

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events at issue or anything amounting to a violation of plaintiff’s federal rights. Since

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government officials cannot be vicariously liable for acts of their subordinates, Ashcroft v. Iqbal,

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566 U.S. 662, 676-77 (2009), plaintiff fails to state an actionable claim against Guirgino.

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As for Granadoz and Barnett, all of plaintiff’s claims, with the exception of one, are

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barred by the “res judicata” doctrine, Owens v. Kaiser Health Foundation Health Plan, Inc., 244

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F.3d 708, 713 (9th Cir. 713), as plaintiff litigated claims to their conclusion in 2:11-cv-1015 WBS

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CKD P which are based on the same set of facts as the claims presented here.

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The remaining claim, that defendant Granadoz violated plaintiff’s Eighth Amendment

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rights by using pepper spray against him on February 14, 2010, was dismissed without prejudice

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from 2:11-cv-1015 WBS CKD P on June 22, 2016 pursuant to plaintiff’s request. Prior to

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dismissal, plaintiff was warned that if he were to attempt to litigate that claim in a subsequent

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action, the claim could ultimately be dismissed as time barred. ECF No. 98. Plaintiff was

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specifically informed:

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The limitations period applicable to § 1983 claims is two years.
Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004). Further,
for prisoners incarcerated on a sentence of less than life
imprisonment, the limitations period is tolled for two years. Jones
v. Blanas, 393 F.3d 918, 927-28 (9th Cir. 2004).

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On June 29, the court ordered plaintiff to show cause why his remaining claim should not
be dismissed as time-barred. Plaintiff did not respond to the court’s order.

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It appears clear from plaintiff’s complaint and the court’s docket in 2:11-cv-1015 WBS

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CKD P that plaintiff’s remaining Eighth Amendment claim against defendant Granadoz is time

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barred. See Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (where affirmative defense is

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clear on the face of the complaint, the complaint may be dismissed for failure to state a claim).

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Therefore, the claim should be dismissed.

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For all of the foregoing reasons, the court will recommend that plaintiff’s complaint be
dismissed, and this case be closed.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s complaint be dismissed; and

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2. This case be closed.

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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 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 Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: August 12, 2016

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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chav0520.fnrs

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