Gibbs v. Farley et al

Filing 51

SECOND ORDER OF SERVICE Dispositive Motion due by 11/3/2014. Signed by Judge Thelton E. Henderson on 08/04/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/5/2014)

1
2
3

IN THE UNITED STATES DISTRICT COURT

4
FOR THE NORTHERN DISTRICT OF CALIFORNIA
5
6
7
8

United States District Court
For the Northern District of California

11

SECOND ORDER OF SERVICE

Plaintiff,

9
10

No. C 13-02114 TEH (PR)

KENNETH GIBBS,

v.
T. FARLEY, et al.,
Defendants.

12

/

13
14
Plaintiff Kenneth Gibbs, a state prisoner presently

15
16
17
18
19
20
21
22
23
24
25
26
27
28

incarcerated at California State Prison–Sacramento, filed the
instant pro se prisoner complaint under 42 U.S.C. § 1983 regarding
incidents that took place at Pelican Bay State Prison (PBSP), where
he was previously incarcerated.

The Court screened the complaint

and found Plaintiff had stated an Eighth Amendment excessive force
claim.

The Court ordered the complaint served on four defendants

at PBSP.
Subsequently, defendants filed an unenumerated motion to
dismiss the case on the ground that Plaintiff had not exhausted his
administrative remedies.

Thereafter, Plaintiff filed a motion for

leave to file a supplemental complaint to add claims arising from
events occurring after the filing of his original complaint.
Court noted Plaintiff’s concession that he did not exhaust

The

1

administrative remedies before filing this action, as required by

2

the Prison Litigation Reform Act of 1995 (PLRA).

See McKinney v.

3

Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

The Court

4

determined, however, that dismissal was improper given the Ninth

5

Circuit’s recent decision in Albino v. Baca, 747 F.3d 1162 (9th

6

Cir. 2014), holding that “an unenumerated motion under Rule 12(b)

7

is not the appropriate procedural device for pretrial determination

8

of whether administrative remedies have been exhausted.”

9

1168.

Id. at

The Court also determined that dismissal was unnecessary

United States District Court
For the Northern District of California

10

given that Plaintiff exhausted administrative remedies subsequent

11

to filing suit and sought to amend his complaint.

12

Robinson, 621 F.3d 1002, 1006 (9th Cir. 2010) (prisoner may satisfy

13

the exhaustion requirement as long as he exhausted his

14

administrative remedies prior to filing an amended complaint).

15

Court therefore denied the motion to dismiss without prejudice and

16

directed Plaintiff to file a first amended complaint, rather than a

17

supplemental complaint.

18

(“FAC”) is now before the Court for review pursuant to 28 U.S.C.

19

§ 1915A.

20

See Rhodes v.

The

Plaintiff’s First Amended Complaint

I

21

Federal courts must engage in a preliminary screening of

22

cases in which prisoners seek redress from a governmental entity or

23

officer or employee of a governmental entity.

24

(a).

25

complaint, or any portion of the complaint, if the complaint “is

26

frivolous, malicious, or fails to state a claim upon which relief

27

may be granted,” or “seeks monetary relief from a defendant who is

28

28 U.S.C. § 1915A

The court must identify cognizable claims or dismiss the

2

1

immune from such relief.”

2

se litigants, however, must be liberally construed.

3

Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica

4

Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990).

5

Id. § 1915A(b).

Pleadings filed by pro
Hebbe v.

To state a claim under 42 U.S.C. § 1983, a plaintiff must

6

allege two essential elements:

7

Constitution or laws of the United States was violated, and

8

(2) that the alleged violation was committed by a person acting

9

under the color of state law.

United States District Court
For the Northern District of California

10
11

(1) that a right secured by the

West v. Atkins, 487 U.S. 42, 48

(1988).
Liability may be imposed on an individual defendant under

12

§ 1983 if the plaintiff can show that the defendant proximately

13

caused the deprivation of a federally protected right.

14

Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of

15

Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).

16

another of a constitutional right within the meaning of § 1983 if

17

he does an affirmative act, participates in another’s affirmative

18

act or omits to perform an act which he is legally required to do,

19

that causes the deprivation of which the plaintiff complains.

20

Leer, 844 F.2d at 633.

21
22

Leer v.

A person deprives

II
In his FAC, Plaintiff asserts the following allegations.

23

On April 24, 2013, PBSP Officers T. Farley and R. Graham came to

24

Plaintiff’s cell to escort him to the Interdisciplinary Treatment

25

Team (IDTT).

26

Plaintiff and Officer Farley exchanges some hostile words, Officers

27

Farley and Andersen handled Plaintiff aggressively, making him feel

28

3

Officer J. Andersen was also present.

After

1

that his welfare and security were at stake.

2

building and out of sight of other inmates, these Officers slammed

3

Plaintiff against the wall and told him that “if he moved, they

4

were going to take him down.”

5

and began escorting Plaintiff back to his cell.

6

of his cell, someone placed their foot before Plaintiff, causing

7

him to fall.

8

his knee upon Plaintiff’s back, causing Plaintiff’s handcuffs to

9

tighten so that he felt excruciating pain.

Upon exiting the

The Officers then reversed direction
Within a few feet

While Plaintiff was falling, Officer Andersen placed

While Plaintiff was on

United States District Court
For the Northern District of California

10

the ground, Officers Andersen and Farley jammed their elbows into

11

Plaintiff’s neck, causing him more pain.

During this entire time,

12

Plaintiff was not resisting the Officers.

Other Officers arrived

13

at the scene.

14

Officer Chisman kicked Plaintiff in his loins.

As a result of the Officers’ use of excessive force,

15

Plaintiff suffered a swollen eye, a swollen knee, and a sprained

16

wrist.

17

against Plaintiff, falsely asserting that he was resisting a peace

18

officer.

19

The Officers also filed a Rules Violation Report (RVR)

Plaintiff was found guilty.
Plaintiff filed his original complaint in the instant

20

action on June 4, 2013.

21

from PBSP’s Administrative Segregation Unit (Ad-Seg) and returned

22

to the general population.

23

approached Plaintiff’s new cell with Plaintiff’s personal property

24

and informed Plaintiff that he could not have his clippers,

25

batteries, chess board, soap dish, playing cards, and prayer oil.

26

Officer Andersen asked whether Plaintiff wanted to donate the items

27

or send them home.

28

On August 5, 2013, Plaintiff was released

On August 10, 2013, Officer Andersen

Plaintiff informed Officer Andersen that he
4

1

would file a lawsuit, and Officer Andersen walked away.

2

September 7, 2013, Officer Andersen again approached Plaintiff’s

3

cell with Plaintiff’s personal property and asked Plaintiff what

4

Plaintiff wanted to do with the items that he was not allowed to

5

have.

6

items but then asked to have his CD-player, ten CDs, rechargeable

7

batteries, battery charger, and headphones.

8

informed Plaintiff that the requested items had been confiscated

9

from his prior Ad-Seg cell because Plaintiff was not supposed to

United States District Court
For the Northern District of California

10

On

Plaintiff told Officer Andersen that he would donate the

Officer Andersen

have them.

11

Based on these allegations, Plaintiff alleges the

12

following claims: (1) an Eighth Amendment claim against Officers

13

Farley, Andersen, and Chisman based on their use of excessive force

14

against Plaintiff; (2) an Eighth Amendment claim against Officers

15

Graham and Chisman based on the fact that they were present when

16

the other Officers violated Plaintiff’s Eighth Amendment rights and

17

did nothing to stop them; (3) a claim for lack of access to the

18

Courts against Officers Farley, Andersen, Graham, and Chisman on

19

the ground that they filed false reports of the above-mentioned

20

incident to cover up their use of excessive force; and (4) a First

21

Amendment claim against Officer Andersen on the ground that he

22

confiscated Plaintiff’s personal property in retaliation for

23

Plaintiff filing the instant action.

24

//

25

//

26

//

27

//

28

5

1

III

2

A

3

In its prohibition of “cruel and unusual punishment,” the

4

Eighth Amendment places restraints on prison officials, who may

5

not, for example, use excessive force against prisoners.

6

McMillian, 503 U.S. 1, 6-7 (1992).

7

prison officials used excessive force, he must show that the

8

officials applied force maliciously and sadistically to cause harm.

9

Id.; Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013).

Hudson v.

Where a prisoner claims that

United States District Court
For the Northern District of California

10

Although the Eighth Amendment protects against cruel and unusual

11

punishment, this does not mean that federal courts can or should

12

interfere whenever prisoners are inconvenienced or suffer de

13

minimis injuries.

14

whether the use of force was for the purpose of maintaining or

15

restoring discipline, or for the malicious and sadistic purpose of

16

causing harm, a court may evaluate the need for application of

17

force, the relationship between that need and the amount of force

18

used, the extent of any injury inflicted, the threat reasonably

19

perceived by the responsible officials, and any efforts made to

20

temper the severity of a forceful response.

21

LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993); see also

22

Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (guards may

23

use force only in proportion to need in each situation).

24
25
26
27
28

Hudson, 503 U.S. at 9-10.

In determining

Id., 503 U.S. at 7;

Construing the allegations liberally, Plaintiff states
an Eighth Amendment excessive force claim against Defendants.
B
Prisoners have a constitutional right of access to the
6

1

courts.

2

430 U.S. 817, 821 (1977).

3

the right of access to the courts, the prisoner must prove that

4

there was an inadequacy in the prison’s legal access program that

5

caused him an actual injury.

6

an actual injury, the prisoner must show that the inadequacy in the

7

prison’s program hindered his efforts to pursue a non-frivolous

8

claim in court concerning his conviction or conditions of

9

confinement.

Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith,
To establish a claim for a violation of

Lewis, 518 U.S. at 350-55.

To prove

Id. at 354-55; Christopher v. Harbury, 536 U.S. 403,

United States District Court
For the Northern District of California

10

415 (2002) (to state a claim, allegations must show the actual

11

injury of being shut out of court).

12

Plaintiff alleged denial of access to the courts in his

13

original complaint in this action.

14

construed liberally, Plaintiff’s allegations were insufficient to

15

establish actual injury.

16

falsified their reports so that he was found guilty, he did not

17

allege how those false reports prevented him from pursuing his

18

claim against them in court.

19

that a prisoner has no constitutionally guaranteed right not to be

20

falsely or wrongly accused of conduct which may result in the

21

deprivation of a protected liberty interest.

22

870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d

23

949, 951 (2d Cir. 1986).

24

remedy the deficiency.

25

The Court found that, even

Although Plaintiff stated that Defendants

The Court further informed Plaintiff

Sprouse v. Babcock,

Plaintiff was granted leave to amend to

In the FAC, Plaintiff again fails to establish actual

26

injury.

27

Defendants somehow prevented Plaintiff from proving a

28

The FAC contains the same conclusory allegations that

7

1

constitutional violation.

2

had Defendants told the alleged truth at his disciplinary hearing,

3

he would have been acquitted of the charges in the RVR.

4

nothing more than a claim for false charges which, as stated above,

5

is foreclosed.

6

951.

7

courts is dismissed.

8

Plaintiff has been given an opportunity to amend this claim and it

9

appears that further amendment would be futile.

Plaintiff appears to be claiming that

See Sprouse, 870 F.2d at 452; Freeman, 808 F.2d at

Accordingly, Plaintiff’s claim for denial of access to the
Dismissal is without leave to amend because

United States District Court
For the Northern District of California

10
11

This is

C
“Within the prison context, a viable claim of First

12

Amendment retaliation entails five basic elements:

13

assertion that a state actor took some adverse action against an

14

inmate (2) because of (3) that prisoner’s protected conduct, and

15

that such action (4) chilled the inmate’s exercise of his First

16

Amendment rights, and (5) the action did not reasonably advance a

17

legitimate correctional goal.”

18

567-68 (9th Cir. 2005) (footnote omitted).

19

that the type of activity he was engaged in was protected by the

20

First Amendment and that the protected conduct was a substantial or

21

motivating factor for the alleged retaliatory acts.

22

City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

23

is not established simply by showing adverse activity by a

24

defendant after protected speech; rather, the plaintiff must show a

25

nexus between the two.

26

893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the

27

logical fallacy of post hoc, ergo propter hoc, i.e., “after this,

28

(1) An

Rhodes v. Robinson, 408 F.3d 559,
The plaintiff must show

See Mt Healthy
Retaliation

See Huskey v. City of San Jose, 204 F.3d

8

1

therefore because of this”).

2

Howards, 132 S.Ct. 2088, 2097-98 (2012) (Ginsburg, J. concurring)

3

(finding no inference of retaliatory animus from Secret Service

4

agents’ assessment whether the safety of the person they are

5

guarding is in danger); Dietrich v. John Ascuaga's Nugget, 548 F.3d

6

892, 901 (9th Cir. 2008) (finding no retaliation where plaintiff

7

presented no evidence that defendants gave her a traffic citation

8

after defendants read a newspaper article about her First Amendment

9

activities, rather than because she drove past a police barricade

See generally Reichle, et al. v.

United States District Court
For the Northern District of California

10

with a “road closed” sign on it); Huskey, 204 F.3d at 899 (summary

11

judgment proper against plaintiff who could only speculate that

12

adverse employment decision was due to his negative comments about

13

his supervisor six or seven months earlier).

14

Plaintiff claims that Officer Andersen confiscated his

15

property in retaliation for his having filed the instant lawsuit,

16

but fails to allege any facts that elevate his allegations to the

17

level of a plausible retaliation claim.

18

property does not alone imply retaliation.

19

alleged suggesting that Officer Andersen denied Plaintiff’s request

20

for his property because of Plaintiff’s protected conduct rather

21

than for departmental reasons, or that the action chilled

22

Plaintiff’s First Amendment rights, or that the action did not

23

reasonably advance a legitimate correctional goal.

24

Plaintiff’s retaliation claim is dismissed.

25

granted so that Plaintiff may attempt to allege a plausible

26

retaliation claim, if he truthfully can do so.

27

//

28

9

The confiscation of
There are no facts

Accordingly,

Leave to amend is

1

IV

2
3

For the foregoing reasons, the Court hereby orders as
follows:

4
5

1.

Plaintiff’s Eighth Amendment excessive force claims

6

against all Defendants are cognizable.

7

denial of access to the courts is DISMISSED without leave to amend.

8

Plaintiff’s retaliation claim is DISMISSED with leave to amend for

9

Plaintiff to remedy the deficiencies noted in the Order, if he

United States District Court
For the Northern District of California

10

truthfully can do so.

11
12

Plaintiff’s claim for

2.

To expedite the resolution of this case, the Court

orders as follows:

13

a.

No later than 91 days from the date this order

14

is filed, Defendants must file and serve a motion for summary

15

judgment or other dispositive motion.

16

judgment also must be accompanied by a Rand notice so that

17

Plaintiff will have fair, timely and adequate notice of what is

18

required of him in order to oppose the motion.

19

F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand

20

v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served

21

concurrently with motion for summary judgment).1

A motion for summary

Woods v. Carey, 684

22
23

1

27

If Defendants assert that Plaintiff failed to exhaust his
available administrative remedies as required by 42 U.S.C. § 1997e(a),
Defendants must raise such argument in a motion for summary judgment,
pursuant to the Ninth Circuit’s recent opinion in Albino v. Baca, 747
F.3d 1162 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust
available administrative remedies under the Prison Litigation Reform
Act, should be raised by a defendant as an unenumerated Rule 12(b)
motion). Such a motion should also incorporate a modified
Wyatt

28

10

24
25
26

1

If Defendants are of the opinion that this case cannot be

2

resolved by summary judgment, Defendants must so inform the Court

3

prior to the date the motion is due.

4

b.

Plaintiff’s opposition to the summary judgment

5

or other dispositive motion must be filed with the Court and served

6

upon Defendants no later than 28 days from the date the motion is

7

filed.

8

regarding summary judgment provided later in this order as he

9

prepares his opposition to any motion for summary judgment.

Plaintiff must bear in mind the notice and warning

United States District Court
For the Northern District of California

10

c.

Defendants shall file a reply brief no later

11

than 14 days after the date the opposition is filed.

12

shall be deemed submitted as of the date the reply brief is due.

13

No hearing will be held on the motion.

14

3.

The motion

Plaintiff is advised that a motion for summary

15

judgment under Rule 56 of the Federal Rules of Civil Procedure

16

will, if granted, end your case.

17

do in order to oppose a motion for summary judgment.

18

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

19

material fact – that is, if there is no real dispute about any fact

20

that would affect the result of your case, the party who asked for

21

summary judgment is entitled to judgment as a matter of law, which

22

will end your case.

23

summary judgment that is properly supported by declarations (or

24

other sworn testimony), you cannot simply rely on what your

Rule 56 tells you what you must
Generally,

When a party you are suing makes a motion for

25
26
27

notice in light of Albino. See Wyatt v. Terhune, 315 F.3d 1108, 1120,
n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir.
2012).

28

11

1

complaint says.

2

declarations, depositions, answers to interrogatories, or

3

authenticated documents, as provided in Rule 56(e), that contradict

4

the facts shown in the defendants’ declarations and documents and

5

show that there is a genuine issue of material fact for trial.

6

you do not submit your own evidence in opposition, summary

7

judgment, if appropriate, may be entered against you.

8

judgment is granted, your case will be dismissed and there will be

9

no trial.

United States District Court
For the Northern District of California

10
11

Instead, you must set out specific facts in

If

If summary

Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998)

(en banc) (App. A).
(The Rand notice above does not excuse Defendants’

12

obligation to serve said notice again concurrently with a motion

13

for summary judgment.

14

4.

Woods, 684 F.3d at 939).

If Plaintiff can cure the pleading deficiencies

15

described above in regard to his retaliation claim, he may file a

16

second amended complaint within twenty-eight days from the date

17

this order is filed.

18

caption and civil case number used in this order (C 13-2114 TEH

19

(PR)) and the words SECOND AMENDED COMPLAINT on the first page.

20

The second amended complaint must include the

Plaintiff is advised that the second amended complaint

21

will supersede the prior complaint and all other pleadings.

22

and defendants not included in the second amended complaint will

23

not be considered by the Court.

24

F.3d 896 (9th Cir. 2012) (en banc) (“For claims dismissed with

25

prejudice and without leave to amend, we will not require that they

26

be repled in a subsequent amended complaint to preserve them for

See Lacey v. Maricopa County, 693

27
28

Claims

12

1

appeal.

2

those claims to be waived if not repled.”).

3

incorporate material from the prior complaints by reference.

4

Failure to file a second amended complaint within twenty-eight days

5

and in accordance with this order will result in a finding that

6

further leave to amend would be futile, and the deficient

7

retaliation claim will be dismissed.

But for any claims voluntarily dismissed, we will consider

8
9
United States District Court
For the Northern District of California

10

5. If Plaintiff does not wish to file an amended
complaint, he shall so inform the Court within twenty-eight days
from the date of this Order.

11
12

Plaintiff may not

6.

The Clerk is directed to correct the spelling of

Defendant R. Grahams’ last name to read Graham.

13

7.

The Court notes that Defendant Graham has not been

14

served.

15

Court that it could not serve Defendant Graham.

16

return filed by the Marshal indicates that the PBSP Litigation

17

Coordinator said that more information is needed to identify this

18

Defendant.

19

caused the problem in service.

20

the Court issued an order directing Plaintiff to provide the Court

21

with a current location for Defendant Graham such that the United

22

States Marshal could effectuate service.

23

September 12, 2013, Plaintiff provided the following additional

24

information for Defendant Graham:

25

R. Graham (Female)
Badge #82207, ID #116001595
RDOS F/S Position A2-S&E#1
Pelican Bay State Prison

26

On July 17, 2013, the United States Marshal informed the

It could be that the misspelling of Graham’s last name
In any event, on August 21, 2013,

27
28

The process and

13

Subsequently, on

1

Accordingly, the Clerk shall send a courtesy copy of this

2

order to the State Attorney General’s Office in San Francisco.

3

Additionally, the Clerk shall send a copy of this order to

4

Plaintiff and to the PBSP Litigation Coordinator.

5

Litigation Coordinator is requested to take note of the additional

6

location information for R. Graham provided above.

7

The PBSP

Counsel for Defendants is directed to inform the Court no

8

later than thirty (30) days from the date of this order whether he

9

will also represent Defendant R. Graham.

United States District Court
For the Northern District of California

10
IT IS SO ORDERED.
11
12

Dated: 08/04/2014
THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24

G:\PRO-SE\TEH\CR.13\Gibbs 13-2114 Serve2.wpd

25
26
27
28

14