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)

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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

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