Fratus v. Gonzales et al

Filing 11

ORDER signed by Magistrate Judge Deborah Barnes on 7/24/2017 ORDERING Plaintiff's claims for retaliation are dismissed and allegations sufficient to state cognizable claims under the 8th Amendment against defendants Gonzales, Mills, and Carothe rs. Plaintiff to complete service of process on defendants within 60 days from the date of this order. Plaintiff to file status report within 90 days from the date of this order. Defendants' status report to be filed within 30 days thereafter. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN FRATUS,

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Plaintiff,

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No. 2:17-cv-0462 KJM DB P

v.

ORDER

GONZALES, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. Plaintiff has paid the filing fee. Plaintiff alleges defendants used excessive force in

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violation of the Eighth Amendment. Before the court is plaintiff’s complaint for screening. For

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the reasons set forth below, the court finds plaintiff has stated cognizable Eighth Amendment

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claims against all defendants.
SCREENING

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I.

Legal Standards

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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. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

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The events complained of occurred during plaintiff’s incarceration at California State Prison-

Allegations of the Complaint

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Sacramento (“CSP-Sac”). (ECF No. 1.) Plaintiff alleges defendants subjected him to excessive

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force in violation of the Eighth Amendment and retaliated against him. Plaintiff seeks relief

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against the following defendants in their individual capacities: Sergeant Gonzales, Officer Mills,

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and Officer Carothers. (Id. ¶¶ 3-7.)

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Plaintiff alleges that at all relevant times he was participating in the Enhanced Outpatient

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Program for mentally ill inmates. On October 2, 2014, defendants Carothers and Mills escorted

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him from a suicide watch mental health crisis bed back to A3 building in the Psychiatric Services

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Unit. Plaintiff had been on suicide watch for one week. However, when he was returned to A3,

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he was placed in a different cell. Plaintiff was so upset about this cell placement that he told

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Carothers and Mills, “I am suicidal.” Carothers and Mills then escorted plaintiff back to a

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holding cage. (Id. ¶¶ 8-17.)

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Plaintiff became more upset and argued with defendant Gonzales about why he had been

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moved. He then “lost his temper” and spit in Gonzales’ face. Carothers and Mills “immediately

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slammed plaintiff down onto the ground face first.” Gonzales, who was wearing boots, then

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kicked plaintiff in the face and body. Mills punched plaintiff in the face and head. After he been

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shackled and was “no longer a threat,” Carothers twisted plaintiff’s left knee and stomped on it in

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an attempt to break it. (Id. ¶¶ 18-28.)
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As a result of the beatings, plaintiff’s face was bruised, swollen, and scraped. Plaintiff’s knee
was swollen and bruised. Plaintiff had a black eye. (Id. ¶ 30.)

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Plaintiff seeks compensatory and punitive damages for his physical injuries and emotional
distress. (Id. ¶¶ 38, 39.)

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III.

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Plaintiff has stated cognizable § 1983 claims against all defendants for excessive force in

Does Plaintiff State Cognizable Claims?

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violation of the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 5 (1992) (the

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unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of

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the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (In an excessive

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force case, the question 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.”). Plaintiff has not, however, stated any

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claim for retaliation. To state a claim for retaliation, plaintiff must show that he suffered an

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adverse action as a result of a constitutionally protected activity. See Blair v. Bethel Sch. Dist.,

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608 F.3d 540, 543 (9th Cir. 2010); Skoog v. County of Clackamas, 469 F.3d 1221, 1232 (9th Cir.

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2006); Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004). Spitting in an officer’s face is

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not a constitutionally protected activity.

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IV.

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Because plaintiff has stated cognizable claims, the Clerk of the Court will be directed to issue

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the appropriate number of summonses to plaintiff for purposes of service of process. See Federal

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Rule of Civil Procedure 4.

Conclusion

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Plaintiff shall complete service of process in accordance with Federal Rule of Civil

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Procedure 4 within sixty days from the date of this order. Plaintiff shall serve a copy of this order

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on each defendant together with a summons and a copy of the complaint. Within 120 days from

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the date of this order, plaintiff and defendants shall each submit to the court and serve by mail on

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all other parties the following status report:

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1. Whether this matter is ready for trial and, if not, why not;

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2. Whether additional discovery is deemed necessary. If further discovery is deemed

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necessary, the party desiring it shall state the nature and scope of the discovery and provide an

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estimate of the time needed in which to complete it;

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3. Whether a pretrial motion is contemplated. If any such motion is contemplated, the

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party intending to file it shall describe the type of motion and shall state the time needed to file

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the motion and to complete the time schedule set forth in Local Rule 230(l);

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4. A narrative statement of the facts that will be offered by oral or documentary evidence
at trial;

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5. A list of all exhibits to be offered into evidence at the trial of the case;

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6. A list of the names and addresses of all witnesses the party intends to call;

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7. A summary of the anticipated testimony of any witnesses who are presently

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incarcerated;

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8. The time estimated for trial;

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9. Whether either party still requests trial by jury; and

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10. Any other matter, not covered above, which the party desires to call to the attention of

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the court.

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In addition, plaintiff shall inform the court in his status report of the date and manner of
service of process.

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The parties are informed that they may, if all consent, have this case tried by a United

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States Magistrate Judge while preserving their right to appeal to the Circuit Court of Appeals. An

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appropriate form for consent to trial by a magistrate judge is attached. Any party choosing to

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consent may complete the form and return it to the clerk of this court. Neither the magistrate

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judge nor the district judge handling the case will be notified of the filing of a consent form

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unless all parties to the action have consented.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s claims for retaliation are dismissed.

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2. The allegations in the pleading are sufficient to state cognizable claims under the

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Eighth Amendment against defendants Gonzales, Mills, and Carothers in their individual

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capacities. See 28 U.S.C. § 1915A.

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3. The Clerk of the Court is directed to issue and send plaintiff three (3) summonses, for

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defendants Gonzales, Mills, and Carothers. The Clerk shall also send plaintiff four (4) copies of

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the form Consent to Proceed Before United States Magistrate Judge with this order.

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4. Plaintiff shall complete service of process on the defendants within sixty days from the

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date of this order. Plaintiff shall serve a copy of this order and a copy of the form Consent to

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Proceed Before United States Magistrate Judge on each defendant at the time the summons and

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complaint are served.

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5. Defendants shall reply to the complaint within the time provided in Fed. R. Civ. P.
12(a).
6. Plaintiff’s status report shall be filed within ninety days from the date of this order.

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Defendants’ status report shall be filed within thirty days thereafter. The parties are advised that

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failure to file a status report in accordance with this order may result in the imposition of

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sanctions, including dismissal of the action and preclusion of issues or witnesses.

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7. Unless otherwise ordered, all motions to dismiss, motions for summary judgment,

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motions concerning discovery, motions pursuant to Fed. R. Civ. P. 7, 11, 12, 15, 41, 55, 56, 59

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and 60, and E.D. Cal. R. 110, shall be briefed pursuant to L.R. 230(l). Failure to timely oppose

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such a motion may be deemed a waiver of opposition to the motion. See L.R. 230(l). Opposition

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to all other motions need be filed only as directed by the court.

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8. If plaintiff is released from prison while this case is pending, any party may request

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application of the other provisions of L.R. 230 in lieu of L.R. 230(l). Until such a motion is

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granted, L.R. 230(l) will govern all motions described in #7 above regardless of plaintiff’s

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custodial status. See L.R. 102(d).

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9. Pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the court hereby informs plaintiff of the

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following requirements for opposing a motion for summary judgment pursuant to Fed. R. Civ. P.
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56. Such a motion is a request for an order for judgment in favor of the defendant without trial.

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A defendant’s motion for summary judgment will set forth the facts that the defendant contends

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are not reasonably subject to dispute and that entitle the defendant to judgment. To oppose a

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motion for summary judgment, plaintiff must show proof of his or her claims. Plaintiff may do

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this in one or more of the following ways. Plaintiff may rely on plaintiff’s statements made under

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penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge

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of the matters stated and plaintiff specifies those parts of the complaint on which plaintiff relies.

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Plaintiff may serve and file one or more affidavits or declarations setting forth the facts that

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plaintiff believes prove plaintiff’s claims; the person who signs an affidavit or declaration must

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have personal knowledge of the facts stated. Plaintiff may rely on written records, but plaintiff

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must prove that the records are what plaintiff asserts they are. Plaintiff may rely on all or any part

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of the transcript of one or more depositions, answers to interrogatories, or admissions obtained in

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this proceeding. If plaintiff fails to contradict the defendant’s evidence with counteraffidavits or

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other admissible evidence, the court may accept defendant’s evidence as true and grant the

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motion. If there is some good reason why such facts are not available to plaintiff when required

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to oppose a motion for summary judgment, the court will consider a request to postpone

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consideration of the defendant’s motion. See Fed. R. Civ. P. 56(d). If plaintiff does not serve and

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file a written opposition to the motion, or a request to postpone consideration of the motion, the

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court may consider the failure to act as a waiver of opposition to the defendant’s motion. See

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L.R. 230(l). If the court grants the motion for summary judgment, whether opposed or

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unopposed, judgment will be entered for the defendant without a trial and the case will be closed

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as to that defendant.

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10. If defendant moves for summary judgment, defendant must contemporaneously serve

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with the motion, but in a separate document, a copy of the attached Rand Notice. See Woods v.

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Carey, 684 F.3d 934, 935 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)

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Failure to do so may constitute grounds for denial of the motion.

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11. On April 3, 2014, the United States Court of Appeals for the Ninth Circuit overruled
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper procedural
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device for raising the issue of administrative exhaustion. Albino v. Baca, 747 F.3d 1162, 1166

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(9th Cir. 2014) (en banc). Following the decision in Albino, a defendant may raise the issue of

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exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure

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to exhaust is clear on the face of the amended complaint, or (2) a motion for summary judgment.

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Albino, 747 F.3d at 1166, 1169-70 (quotation marks omitted). An unenumerated Rule 12(b)

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motion is no longer the proper procedural device for raising the issue of exhaustion. Albino, 747

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F.3d at 1168. The court encourages defendant to bring motions raising exhaustion issues early in

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the case. Id. at 1170-71.

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12. Unsigned affidavits or declarations will be stricken, and affidavits or declarations not
signed under penalty of perjury have no evidentiary value.
13. Each party proceeding without counsel shall keep the court informed of a current

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address at all times while the action is pending. Any change of address must be reported

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promptly to the court in a separate document captioned for this case and entitled “Notice of

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Change of Address.” A notice of change of address must be properly served on other parties.

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Service of documents at the address of record for a party is fully effective. See L.R. 182(f). A

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party’s failure to inform the court of a change of address may result in the imposition of sanctions

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including dismissal of the action.

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14. The Clerk of the Court shall serve on plaintiff a copy of the Local Rules of Court.

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15. The failure of any party to comply with this order, the Federal Rules of Civil

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Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but

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not limited to, dismissal of the action or entry of default. See Fed. R. Civ. P. 41(b).

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Dated: July 24, 2017

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DLB:9
DLB1/prisoner-civil rights/frat0462.8fee

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Rand Notice to Plaintiff

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This notice is provided to ensure that you, a pro se prisoner plaintiff, “have fair, timely and adequate notice

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of what is required” to oppose a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012);

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Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). The court requires that you be provided with this notice

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regarding the requirements for opposing a motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure.

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When a defendant moves for summary judgment, the defendant is requesting that the court grant judgment

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in defendant’s favor without a trial. If there is no real dispute about any fact that would affect the result of your case,

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the defendant who asked for summary judgment is entitled to judgment as a matter of law, which will end your case

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against that defendant. A motion for summary judgment will set forth the facts that the defendant asserts are not

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reasonably subject to dispute and that entitle the defendant to judgment.

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To oppose a motion for summary judgment, you must show proof of your claims. To do this, you may

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refer to specific statements made in your complaint if you signed your complaint under penalty of perjury and if your

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complaint shows that you have personal knowledge of the matters stated. You may also submit declarations setting

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forth the facts that you believe prove your claims, as long as the person who signs the declaration has personal

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knowledge of the facts stated. You may also submit all or part of deposition transcripts, answers to interrogatories,

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admissions, and other authenticated documents. For each of the facts listed in the defendant’s Statement of

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Undisputed Facts, you must admit the facts that are undisputed, and deny the facts that are disputed. If you deny a

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fact, you must cite to the proof that you rely on to support your denial. See L.R. 260(b). If you fail to contradict the

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defendant’s evidence with your own evidence, the court may accept the defendant’s evidence as the truth and grant

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the motion.

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The court will consider a request to postpone consideration of the defendant’s motion if you submit a

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declaration showing that for a specific reason you cannot present such facts in your opposition. If you do not respond

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to the motion, the court may consider your failure to act as a waiver of your opposition. See L.R. 230(l).

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If the court grants the defendant’s motion, whether opposed or unopposed, judgment will be entered for that
defendant without a trial and the case will be closed as to that defendant.
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If the motion for summary judgment concerns the exhaustion of administrative remedies, you must submit
proof of specific facts regarding the exhaustion of administrative remedies. See Stratton v. Buck, 697 F.3d 1004,
1008 (9th Cir. 2012); Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).

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