Perez v. Cate et al

Filing 47

ORDER GRANTING MOTIONS FOR EXTENSION OF TIME AND TO FILE LARGE BRIEF; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; DENYING MOTION FOR APPOINTMENT OF COUNSEL; SCHEDULING SUMMARY JUDGMENT MOTION. Signed by Judge Jeffrey S. White on 12/8/11. (jjoS, COURT STAFF) (Filed on 12/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SALVADOR PEREZ,

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Plaintiff,
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v.

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MATTHEW CATE, et al.,
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Defendants.

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No. C 10-3730 JSW (PR)
ORDER GRANTING MOTIONS
FOR EXTENSION OF TIME AND
TO FILE LARGE BRIEF;
GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS; DENYING MOTION FOR
APPOINTMENT OF COUNSEL;
SCHEDULING SUMMARY
JUDGMENT MOTION

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(Docket Nos. 32, 35, 39, 40)
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INTRODUCTION
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Plaintiff, a prisoner of the State of California, filed this pro se civil rights action
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pursuant to 42 U.S.C. § 1983. Defendants have filed a motion to dismiss the complaint
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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that
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the complaint fails to state a cognizable claim for relief. Plaintiff filed an opposition,
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and Defendants filed a reply. For the reasons discussed below, the motion to dismiss is
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GRANTED IN PART AND DENIED IN PART.
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BACKGROUND
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Plaintiff alleges that on September 11, 2009, officials at Pelican Bay State
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Prison, placed him in a plastic restraining device because they suspected that he had
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ingested a cell phone. This suspicion was based upon a letter Plaintiff had written, but

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which Plaintiff contends was misunderstood by prison officials. Defendant

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Winningham allegedly ignored Plaintiff’s request for an x-ray, and instead he and

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Defendant Tupy placed Plaintiff kept him in the restraining device for four days,

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through September 14, by which time he had defecated a sufficient number of times that

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they were satisfied that he had not in fact ingested a cell phone. Plaintiff alleges that

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this restraining device, which he describes a “plastic pipes device,” was manufactured

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by one of the PBSP guards and that it caused him a great deal of pain. He further

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alleges that the cell he was placed into during this time was filthy and cold, and that he

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did not receive any hygiene products.

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Plaintiff was retrained pursuant to a procedure used in the California prisons for

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restraining inmates who are suspected of ingesting contraband. The procedure is called

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“Contraband Surveillance Watch” (“CSW”), and it is intended to prevent the inmate

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from accessing or destroying the contraband that they might have ingested. CSW

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entails dressing the inmate in a jumpsuit, taping the clothing around the abdomen, and

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placing him in both mechanical leg restraints and mechanical waist restraints with

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attached handcuffs. The inmate’s bowel movements, urine, and clothing are searched.

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The inmate is kept in these restraints for seventy-two hours, or the time it takes the

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inmate to have three bowel movements that are free of contraband. The amount of time

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an inmate is placed on CSW can be extended.

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PBSP has its own additional measures for inmates on CSW. At PBSP, an inmate

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on CSW is also required to wear plastic tubes over their hands, covering their hands and

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forearms. The tubes are removed only to allow the inmate to eat, to use the bathroom,

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and to attend medical evaluations, during which time a prison official must be present.

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These measures were authorized at PBSP in 2008 by Defendant Jacquez, the PBSP

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Warden at the time.

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DISCUSSION
A.

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Standard of Review
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. West v. Atkins, 487 U.S. 42, 48 (1988).
In deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

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Civil Procedure, the Court must limit its review to the contents of the complaint, Clegg

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v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents

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physically attached to the complaint or documents the complaint necessarily relies on

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and whose authenticity is not contested, Lee v. County of Los Angeles, 250 F.3d 668,

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688 (9th Cir. 2001). Here, Plaintiff attaches to the amended complaint records relating

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to his state court conviction, including the abstract of judgment, minute orders by the

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state court, and the sentencing transcript. In addition, the Court may take judicial notice

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of facts that are not subject to reasonable dispute. Id. at 688 (discussing Fed. R.

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Evid. 201(b)). Allegations of fact in the complaint must be taken as true and construed

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in the light most favorable to the non-moving party. Sprewell v. Golden State Warriors,

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266 F.3d 979, 988 (9th Cir. 2001). The Court need not, however, “accept as true

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allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

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inferences.” Id.

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Pro se pleadings must be construed liberally on a defendant’s motion to dismiss

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for failure to state a claim. Ortez v. Washington County Oregon, 88 F.3d 804, 807 (9th

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Cir. 1996).

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B.

Analysis

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1.

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Plaintiff claims that his placement on CSW at PBSP violated his Eighth

Eighth Amendment

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Amendment rights to be free from cruel and unusual punishment. Defendants argue that

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this claim should be dismissed as to all Defendants except for Winningham and Tupy

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because they were the only ones personally involved in his seventy-two hour placement

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on CSW. Liability may be imposed on an individual defendant under 42 U.S.C. § 1983

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if the plaintiff can show that the defendant proximately caused the deprivation of a

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federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Even at

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the pleading stage, "[a] plaintiff must allege facts, not simply conclusions, that show

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that an individual was personally involved in the deprivation of his civil rights." Barren

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v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

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Defendants argue that Plaintiff has failed to allege personal involvement by

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Defendants Cook, Jacquez, Bradbury, Cruse, Brandon, McMillan and Cate because

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Plaintiff does not allege that they “actually placed” the plastic tube devices on him,

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spoke with him, observed him while he was on CSW, denied his request for an x-ray

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instead of CSW placement, or heard a complaint from them regarding the CSW

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conditions. Plaintiff may allege any of these things in order to state a cognizable claim

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against Defendants, but he need not. Under Leer and Barren, he must simply allege

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actions by Defendants that proximately caused the claimed constitutional violation, in

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this case his placement on CSW and subjection to the alleged CSW conditions.

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Plaintiff has done so with respect to Defendants Cook and Cruse insofar as he

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has alleged that they authorized his retention on CSW, in the plastic tubes, for an extra

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24 hours. (Amend Compl. at 17-19.) This proximately caused Plaintiff to endure

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additional allegedly painful time in the CSW devices. Plaintiff alleges his placement in

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the CSW devices initially was not justified, and extending his time in such devices was

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also allegedly unjustified. When liberally construed, these allegations are sufficient to

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state a cognizable claim against Defendants Cook and Cruse for the violation of his

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Eighth Amendment rights.

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The remaining Defendants allegedly are or were supervisors at PBSP and in the

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California prison system as a whole. “In a § 1983 or a Bivens action – where masters do

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not answer for the torts of their servants – the term ‘supervisory liability’ is a misnomer.

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Absent vicarious liability, each Government official, his or her title notwithstanding, is

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only liable for his or her own misconduct.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009). A supervisor may be liable under Section 1983 upon a showing of (1) personal

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involvement in the constitutional deprivation or (2) a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation. Starr v.

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Baca, 652 F.3d 1202, 1207(9th Cir. 2011); Redman v. County of San Diego, 942 F.2d

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1435, 1446 (9th Cir. 1991) (en banc). A supervisor "is only liable for constitutional

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violations of his subordinates if the supervisor participated in or directed the violations,

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or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989).

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Plaintiff alleges that Defendant Jacquez implemented the CSW policy and

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procedures that were used on him at PBSP, including the plastic tube devices, and that

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Defendants Cate, Jacquez, McMillan, and Brandon knew about such procedures but

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failed to use their supervisory powers to prevent their use. He also alleges that

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Defendants Cate and Jacquez failed to properly train, supervise and discipline the other

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Defendants to ensure that they did not violate his constitutional rights. “It has long been

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clearly established that ‘[s]upervisory liability is imposed against a supervisory official

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in his individual capacity for his own culpable action or inaction in the training,

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supervision, or control of his subordinates, for his acquiescence in the constitutional

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deprivations of which the complaint is made.’” Preschooler II v. Davis, 479 F.3d 1175,

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1183 (9th Cir. 2007) (citations omitted). As may evidence that a supervisor

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implemented "a policy so deficient that the policy itself is a repudiation of constitutional

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rights and is the moving force of the constitutional violation." Redman, 942 F.2d at

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1446.

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At a later stage of the proceedings, such as in a motion for summary judgment,

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the Court may consider any evidence that the supervisor Defendants may want to

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present showing that they did not implement the CSW procedures applied to Plaintiff,

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did know about them, did not have any authority or ability to act to prevent them, were

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not involved in the training, supervision or discipline of the other Defendants, or did not

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have the mental state required to violate Plaintiff’s Eighth Amendment rights. At this

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stage, however, Plaintiff’s allegations must be taken as true and liberally construed in

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his favor. So construed, his allegations about the supervisory Defendants are sufficient

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to state a cognizable claim for relief against them under Section 1983.

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Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim will be

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denied. The Court notes that his allegations are cognizable as a violation of his rights

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under the Eighth Amendment either on the theory that Defendants’s use of the CSW

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procedures amounted to excessive force or subjected him to unsafe prison conditions.

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2.

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Plaintiff also claims that Defendants violated his right to due process by placing

Due Process

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him on CSW. Defendants argue that Plaintiff has failed to state a cognizable claim

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because the CSW conditions that he alleges are not “atypical and significant” when

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compared to the ordinary prison conditions. Deprivations that are authorized by state

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law amount to deprivations of a liberty interest protected by due process, provided that

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(1) state statutes or regulations narrowly restrict the power of prison officials to impose

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the deprivation, and (2) the liberty in question is one freedom from a restraint that

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imposes "atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life." See Sandin v. Conner, 515 U.S. 472, 477-87 (1995).1 Whether

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A liberty interest is also implicated where the state action "will inevitably affect
the duration of [a] sentence," id. at 487, but that is not at issue here.
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a restraint is "atypical and significant" under Sandin requires a court to consider: "1)

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whether the challenged condition 'mirrored those conditions imposed upon inmates in

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administrative segregation and protective custody,' and thus comported with the prison's

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discretionary authority; 2) the duration of the condition, and the degree of restraint

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imposed; and 3) whether the state's action will invariably affect the duration of the

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prisoner’s sentence." Id. at 861.

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Plaintiff alleges that he spent four days and three nights straight in a jumpsuit

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duct-taped around his abdomen, in mechanical waist and leg restraints and handcuffs,

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with his hands and forearms stuck into painful plastic tubes, all in a cold and dirty cell

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with no access to soap or other sanitary products. Defendants have not shown that these

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alleged conditions mirror the conditions of inmates in administrative segregation or

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protective custody. When liberally construed, they are sufficient to be considered

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“atypical and significant” when compared to the ordinary prison conditions.

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Consequently, Plaintiff’s claim that Defendants violated his right to due process, when

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liberally construed is cognizable.

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3.

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Plaintiff also claims that his civil rights were violated under California Civil

State Law Claim

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Code § 52.1. Defendants argue that this claim is barred by the statute of limitations. It

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is not disputed that in order to bring this claim, Plaintiff had to file his claim within six

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months of the state’s denial of his administrative tort claim. See Cal. Gov. Code §

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945.6; Moore v. Toomey, 120 Cal. App. 4th 914 (2004). Here, the state rejected his

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claim on December 17, 2009. Under the “mailbox rule,” the instant action is deemed

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filed on the date Plaintiff gave his original complaint to prison officials for mailing to

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the Court. See Douglas v. Noelle, 567 F.3d 1103, 1107-09 (9th Cir. 2009) (mailbox rule

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applies to the filing of § 1983 complaint). The original complaint filed herein was

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signed on May 1, 2010, before the six-month deadline expired, but the proof of service

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was signed on July 28, 2010, after the six-month deadline expired. The proof of service

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is controlling because in it Plaintiff swears under penalty of perjury that he gave his

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complaint to officials for mailing on July 29, 2010. The signature page of the original

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complaint (Compl. at 15) only shows that he signed the complaint on May 31, 2009, it

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does not indicate when he gave it to prison officials for mailing. As such, it does not

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rebut the sworn declaration in the proof of service stating that the complaint was given

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to prison officials after the statute of limitations had expired. Accordingly, Plaintiff’s

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state law claims will be dismissed as untimely.

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CONCLUSION

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For the foregoing reasons,

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Defendants’ motion to dismiss is DENIED IN PART AND GRANTED IN

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PART (docket number 35). Plaintiff’s claims under state law are DISMISSED.

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Defendants’ motion for an extension of time (docket number 32) is GRANTED.

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Plaintiff’s motion for leave to file a large brief (docket number 39) is GRANTED, and

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his motion for appointment of counsel (docket number 40) is DENIED. Plaintiff shall

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not file any further motions for appointment of counsel. The Court will on its own

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initiative attempt to locate pro bono counsel at a later date should the circumstances of

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the case so warrant.

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2. In order to expedite the resolution of this case, the Court orders as follows:

a. No later than ninety (90) days from the date this order is filed,

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Defendants shall file a motion for summary judgment, or a notice to the Court that they

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are of the opinion that this matter cannot be resolved by dispositive motion. The motion

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shall be supported by adequate factual documentation and shall conform in all respects

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to Federal Rule of Civil Procedure 56.

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Defendants are advised that summary judgment cannot be granted, nor
qualified immunity found, if material facts are in dispute. If defendants are of the

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opinion that this case cannot be resolved by summary judgment, they shall so

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inform the Court prior to the date the summary judgment motion is due.
All papers filed with the Court shall be promptly served on the Plaintiff.

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b. Plaintiff's opposition to the dispositive motion, if any, shall be filed

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with the court and served upon defendants no later than thirty days from the date of

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service of the motion. Plaintiff must read the attached page headed “NOTICE --

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WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952,

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953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12

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(9th Cir. 1988).
c. Defendants shall file a reply brief no later than fifteen (15) days after

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Plaintiff's opposition is filed.

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d. The motion shall be deemed submitted as of the date the reply brief is
due. No hearing will be held on the motion unless the Court so orders at a later date.

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3. Discovery may be taken in accordance with the Federal Rules of Civil

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Procedure. No further Court order under Federal Rule of Civil Procedure 30(a)(2) or

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Local Rule 16 is required before the parties may conduct discovery.

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4. Extensions of time are not favored, though reasonable extensions will be

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granted. Any motion for an extension of time must be filed no later than five days prior

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to the deadline sought to be extended.

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5. All communications by Plaintiff with the Court must be served on Defendant,

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or Defendant’s counsel once counsel has been designated, by mailing a true copy of the

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document to Defendant or Defendant’s counsel.

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//

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//

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6. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: December 8, 2011

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JEFFREY S. WHITE
United States District Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material

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fact--that is, if there is no real dispute about any fact that would affect the result of your case,

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the party who asked for summary judgment is entitled to judgment as a matter of law, which

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will end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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your complaint says. Instead, you must set out specific facts in declarations, depositions,

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answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that

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contradict the facts shown in the defendant's declarations and documents and show that there is

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a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

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summary judgment, if appropriate, may be entered against you. If summary judgment is

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granted, your case will be dismissed and there will be no trial.

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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SALVADOR PEREZ,

Case Number: CV10-03730 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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MATTHEW CATE et al,

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Defendant.

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 8, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Salvador Perez
J47812
P.O. Box 7500
Crescent City, CA 95532

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Dated: December 8, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk