Wolinski v. Lewis et al

Filing 75

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/18/2023 ORDERING that 69 Second Amended Prisoner Civil Rights Complaint states cognizable claims against the following defendants: W. Golsh, J. Penaflorida, R. Longshore, R. Ward, R. Singh, and M. Gomez. By separate order, after the District Judge rules on the findings and recommendations herein, the court shall direct these defendants to file a response to 69 Second Amended Complaint. It is RECOMMEN DED that the following individuals named as defendants be dismissed for failure to state claims upon which relief may granted: J. Lewis, J. Porras, D. Brown, J. Cheeseman, D. Celaya, B. Barrett, Constacio, and A. Lopez. Referred to District Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSZTOF F. WOLINSKI,

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No. 2:17-cv-0583 MCE AC P

Plaintiff,

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v.

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J. LEWIS, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983. The case

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removed to federal court by defendants. ECF No. 2. It has been referred to a United States

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

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Before the court is plaintiff’s second amended complaint (“SAC”). For the reasons stated

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below, this action should proceed on Claims One and Two against specified defendants only. The

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undersigned will recommend that other named defendants be dismissed.

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

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

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

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an

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arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989);

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Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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II.

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The SAC names fourteen individual defendants, all of whom were employed at California

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Health Care Facility (“CHCF”) during the period in question. See ECF No. 69 at 1-3, 8-11. The

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factual allegations, however, link only six of those individual defendants to the alleged violations

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of plaintiff’s rights. The SAC presents two claims, both of which are suitable to proceed on the

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following bases as to the individuals identified below.

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SECOND AMENDED COMPLAINT

A. Claim One
1. Allegations
In Claim One, plaintiff alleges that on or around July 12, 2016, defendant P.T.W. Golsh, a

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psychiatric technician at CHCF, violated his First Amendment and Eighth Amendment rights.

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ECF No. 69 at 4, 12-13. Plaintiff alleges that after he had filed a grievance against Golsh for

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sleeping on the job – which led to plaintiff being denied shower and computer / law library access
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– Golsh retaliated by denying plaintiff food and his special diet prescription, as well as his

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medications. Id. at 4, 12.

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Plaintiff further alleges that in response to defendant Golsh’s actions, he covered his cell

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windows as a form of “peaceful protest.” ECF No. 69 at 4, 12. This led to defendants Golsh,

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Penaflorida, and Longshore entering plaintiff’s cell and assaulting him, despite the fact that he

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was already on the floor and in restraints. Id. at 12-13. Plaintiff’s front tooth was broken; he

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suffered internal bleeding and PTSD; he had to have multiple “emergency repairs,” and he had to

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have his spleen removed. Id. at 4, 13.

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2. Discussion
a. Plaintiff Has Presented a Cognizable First Amendment Claim

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“It is well-established that, among the rights they retain, prisoners have a First

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Amendment right to file prison grievances.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009) (citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005). “Retaliation against

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prisoners for their exercise of this right is itself a constitutional violation, and prohibited as a

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matter of ‘clearly established law’.” Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 566;

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Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995)).

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The allegations that defendant Golsh denied plaintiff food, prescribed special meals, and

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medications because plaintiff had filed a grievance against him states a viable First Amendment

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retaliation claim. Defendant Golsh will be ordered to respond.

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b. Plaintiff Has Presented a Cognizable Eighth Amendment Claim

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“In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

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restraints on prison officials, who may not . . . use excessive physical force against prisoners.”

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Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)).

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“[W]henever prison officials stand accused of using excessive physical force in violation of the

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[Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith

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effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson,

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503 U.S. at 6-7 (brackets added) (referencing Whitley v. Albers, 475 U.S. 312 (1986)).

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Plaintiff’s allegations of an assault leading to spleen removal, internal bleeding and a
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broken tooth are sufficient to support and Eighth Amendment excessive force claim against

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Golsh, Penaflorida, and Longshore. They will be ordered to respond.

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B. Claim Two
1. Allegations
In Claim Two, plaintiff alleges that while he was being beaten by Golsh, Penaflorida, and

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Longshore, defendants Lieutenant R. Ward and Sergeants Singh and M. Gomez failed to

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intervene and protect him. ECF No. 69 at 5, 15-16. Instead, these defendants “just [stood]

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outside [my] room watching and doing nothing . . . until [I] pass[ed] out from lack of air and

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kicking of [my] head.” Id. at 5 (brackets added). Plaintiff again points out that because he was in

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hand and leg restraints and was pinned to the floor, there was no reason for defendants to beat

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him in this way. Id.

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2. Discussion
Police officers have a duty to intervene when fellow officers violate the constitutional

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rights of a suspect or other citizen. Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)

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(citation omitted). At the same time, however, they may only be held liable for failure to

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intervene if they had an opportunity to do so. See id. at 1289-90 (citing Bruner v. Dunaway, 684

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F.2d 422, 426-27 (6th Cir. 1982) (holding officers who were not present at time of alleged assault

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could not be held liable in a Section 1983 action)). The failure to intervene violates a prisoner’s

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Eighth Amendment rights. See Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995).

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Claim Two adequately alleges facts showing that defendants Ward, Singh, and Gomez

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witnessed the beating, had an opportunity to intervene and stop their co-workers’ assault on

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plaintiff, and failed to do so. These facts state a viable Eighth Amendment failure to protect

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claim against Ward, Singh, and Gomez. They will therefore be ordered to respond.

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III. REMAINING DEFENDANTS

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In addition to the defendants against whom plaintiff has stated a claim for the reasons

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already explained, numerous other individuals are identified as defendants. See ECF No. 69 at 1-

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3. There are no facts alleged in Claims One and Two to suggest that any of these individuals

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caused the alleged constitutional violations or were involved in any way in the events described in
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Claim One and Claim Two. Accordingly, plaintiff has not stated any claim for relief against the

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following defendants: J. Lewis; J. Porras; D. Brown; J. Cheeseman; D. Celaya; B. Barrett;

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Constacio; and A. Lopez.

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Plaintiff has twice amended the complaint. See ECF Nos. 24, 69 (amended complaints).

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He has been specifically told what he needed to do in order to state viable claims against the

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named defendants. ECF No. 64 at 3-6 (order screening first amended complaint). Despite this

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fact, plaintiff has failed to present cognizable claims against the majority of the named

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defendants. Accordingly, the undersigned finds that providing plaintiff with a third opportunity

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to amend the complaint would be futile and would not serve the interests of justice. See

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Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to

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amend when amendment would be futile.”). It will therefore be recommended that all defendants

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against whom plaintiff has not stated viable claims be dismissed and that the case proceed as

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screened above.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. In accordance with 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c), the second amended

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complaint (ECF No. 69) has been screened, and the viable claims have been identified.
2. The second amended complaint states cognizable claims of violations of First and/or

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Eighth Amendment rights against the following defendants, all of whom were employees at

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California Health Care Facility during the relevant period:

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W. Golsh, a psychiatric technician;

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J. Penaflorida, a psychiatric technician;

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R. Longshore, a psychiatric technician;

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R. Ward, a correctional lieutenant;

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

R. Singh, a correctional sergeant, and

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M. Gomez, a correctional sergeant / supervisor.

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3. Defendants will be required to reply to the second amended complaint. 42 U.S.C. §
1997e(g)(2).
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By separate order, after the District Judge assigned to this matter rules on the findings and

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recommendations herein, the court shall direct these defendants to file a response to the second

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amended complaint.

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IT IS FURTHER RECOMMENDED that the following individuals named as defendants

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in this action be DISMISSED for failure to state claims upon which relief may granted: J. Lewis;

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J. Porras; D. Brown; J. Cheeseman; D. Celaya; B. Barrett; Constacio, and A. Lopez.

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These findings and recommendations are 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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 18, 2023

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