Ortega et al v. Flavetta et al

Filing 7

ORDER re 1 Complaint, filed by Carlos Armando Ortega Amended Complaint due by 7/8/2013.. Signed by Judge ARMSTRONG on 6/10/13. (lrc, COURT STAFF) (Filed on 6/10/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

CARLOS ARMANDO ORTEGA,
4

Plaintiff,
5

v.
6
7

SERGEANT FLAVETTA, et al.,
Defendants.

8

)
)
)
)
)
)
)
)
)
)

No. C 12-3426 SBA (PR)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

9

INTRODUCTION

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff Carlos Armando Ortega, who is currently incarcerated at the Santa Clara
County Jail (SCCJ), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983
alleging that Defendants violated his constitutional rights. His motion for leave to proceed in
forma pauperis (IFP) has been granted. (Dkt. 6).
Venue is proper because the events giving rise to the claim are alleged to have
occurred at SCCJ, which is located in this judicial district. See 28 U.S.C. § 1391(b).
In his complaint, Plaintiff names the following Defendants who appear to be officers
at SCCJ: Sergeant Flavetta; and Officers A. Guzman, J. Colar, S. Graham, L. Prasad, P.
Terry, Robert Barbasa, J. Villagomez, Snowden, M. Cortez, M. Johnson, Bettencourt,
Zumora, Galloway, Torres, Blundo, Buggs, Weind, Gomez, Hernandez, Remero, Marichalar,
Lopez, Alverez, Tran, Martinilli, Atchinson, Fortino, Cabbarea, Murk, Kelter, Diaz, and
Mackenzi. He seeks monetary damages.
The Court now conducts its initial review of the complaint pursuant to 28 U.S.C.
§ 1915A.
BACKGROUND
Plaintiff has two other civil rights action pending in this Court entitled, Ortega v. City
of Santa Clara, et al., No. C 09-5527 SBA (PR) (2009 case) and Ortega v. Smith, No. C 111003 SBA (PR) (2011 case). In the 2009 case, the Court found that Plaintiff had stated

1

cognizable claims for failure to treat his serious mental health needs and for violating his due

2

process rights. In the 2011 case, the Court found that Plaintiff had stated cognizable claims

3

for excessive force and deliberate indifference against Officers Barbasa and Villagomez, who

4

are also named as Defendants in the instant action.

5

Because Plaintiff's complaint in the instant action contains sparse background

6

information, the Court adopts the relevant background information from the May 2, 2011

7

Order of Dismissal With Leave to Amend in the 2009 case:

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

10
11
12
13
14

Plaintiff states that beginning in March, 2007, he was housed at SCCJ
as a pretrial detainee facing charges of assault with a deadly weapon.
(Compl. at 3a.) He claims suffers from a "server [sic] mental disorder bipolar schizophinnia [sic]," and that he has a "history of 12 year medication
[and] hospitalization 1997 to 2009." (Id.) In September, 2007, he was found
"incompetent to stand trial." (Id.) He alleges that from June 6, 2007 through
September 4, 2007, he was denied mental health treatment. (Id. at 3c.) He
alleges that "low medication dosage made [him] think irrationally and
spontaneous to two violent out-burst." (Id.)
(May 2, 2011 Order in 2009 case at 1-3 (footnote omitted).)
In the instant complaint, Plaintiff again alleges that he has been a pretrial detainee at

15

SCCJ "since about March 27, 2007" and that he has taking anti-psychotic medication for his

16

bi-polar disorder. Compl. at 3(1). He alleges that Defendants: (1) provoked him to "gas"

17

Officers Barbasa and Guzman; (2) contaminated his food tray with urine; (3) had plumbers

18

contaminate his cell water for five days; (4) opened his cell door in violation of prison

19

procedures "due to inmates level 4 custody [being a] danger to self and others"; and

20

(5) threatened to hang him or hog-tie him, cut him into pieces, and "letting other inmates stab

21

[him] to death or retaliate by killing his 15 year old daughter." Id. at 3(4-9). Plaintiff also

22

alleges that Officers Torres and Blundo "were trying to set [him] up by attack by [an]other

23

inmate." Id. at 3(6-7). Plaintiff adds that Officers Barbasa, Villagomez, and Guzman called

24

him a "rapist" and a "snitch" for filing complaints against other officers. Plaintiff claims

25

many of these actions caused him to become agitated and to have "racing thoughts." Id. at

26

3(5). He also alleges that, when Officers Prasad and Terry opened the door to his cell, he

27

attacked and assaulted them, causing him to be charged with "another three-strikes case." Id.

28
2

Plaintiff ends his complaint by alleging that he still suffers from a severe mental

1
2

illness which causes him to hear voices and to have irrational thoughts against officers and

3

that he is still being "denied mental health treatment and housing in a mental health ward."

4

Id. at 3(9-10).
Plaintiff requests that the Court issue a temporary restraining order (TRO) against all

5
6

named Defendants to "keep [them] away" from harassing him. Id. at 3(10). Plaintiff also

7

requests that the Court appoint counsel to represent him in this action.

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

10

DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

11

seeks redress from a governmental entity or officer or employee of a governmental entity.

12

See 28 U.S.C. § 1915A(a). It its review, the court must identify cognizable claims and

13

dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

14

be granted or seek monetary relief from a defendant who is immune from such relief. Id.

15

§ 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. Balistreri v.

16

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

17

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

18

elements: (1) that a right secured by the Constitution or laws of the United States was

19

violated, and (2) that the alleged violation was committed by a person acting under the color

20

of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Liability may be imposed on an

21

individual defendant under § 1983 if the plaintiff can show that the defendant proximately

22

caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th

23

Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person

24

deprives another of a constitutional right within the meaning of § 1983 if he does an

25

affirmative act, participates in another's affirmative act or omits to perform an act which he is

26

legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844

27

F.2d at 633. The inquiry into causation must be individualized and focus on the duties and

28
3

1

responsibilities of each individual defendant whose acts or omissions are alleged to have

2

caused a constitutional deprivation. Id. Sweeping conclusory allegations will not suffice; the

3

plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation

4

of protected rights. Id. at 634.

5

II.

Exhaustion of Administrative Remedies

6

Liberally construed, Plaintiff's complaint raises three claims: (1) the use of excessive

7

force; (2) unsanitary living conditions; and (3) deliberate indifference to his serious medical

8

needs. A threshold question which must be answered before Plaintiff can proceed with these

9

claims is whether he has exhausted available administrative remedies with respect to each

United States District Court
For the Northern District of California

10
11

claim.
The Prison Litigation Reform Act of 1995, (PLRA), amended 42 U.S.C. § 1997e to

12

provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

13

§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

14

correctional facility until such administrative remedies as are available are exhausted." 42

15

U.S.C. § 1997e(a).

16

Exhaustion is mandatory and no longer left to the discretion of the district court.

17

Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739

18

(2001)). "Prisoners must now exhaust all 'available' remedies, not just those that meet federal

19

standards." Id. The PLRA's exhaustion requirement requires "proper exhaustion" of

20

available administrative remedies. Id. at 93.

21

An action must be dismissed unless the prisoner exhausted his available

22

administrative remedies before he or she filed suit, even if the prisoner fully exhausts while

23

the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).

24

If the district court concludes that the prisoner has not exhausted non-judicial

25

remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d

26

1108, 1120 (9th Cir. 2003). A prisoner's concession to non-exhaustion is a valid ground for

27

dismissal, so long as no exception to exhaustion applies. Id. Accordingly, a claim may be

28
4

1

dismissed without prejudice if it is clear from the record that the prisoner has conceded that

2

he did not exhaust administrative remedies. Id.
The State of California provides its inmates the right to appeal administratively "any

3

policy, decision, action, condition or omission by the department or its staff that the

5

inmate . . . can demonstrate as having a material adverse affect upon his or her health, safety

6

or welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available

7

administrative remedies within this system, a prisoner must proceed through several levels of

8

appeal: (1) informal resolution, (2) formal written appeal on a 602 inmate appeal form,

9

(3) second level appeal to the institution head or designee, and (4) third level appeal to the

10
United States District Court
For the Northern District of California

4

Director of the California Department of Corrections and Rehabilitation (CDCR). See id.

11

§ 3084.7; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the

12

administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.

13

Here, the claims raised in Plaintiff's complaint appear not to have been exhausted

14

through the administrative grievance procedure. On page two of his complaint, Plaintiff lists

15

four prison grievances he has filed, but he indicates that only one made it to "level 3

16

resolved." Compl. at 2. Furthermore, he fails to indicate which of the claims from the

17

instant complaint were included in the aforementioned prison grievance that was allegedly

18

"resolved" at the third level. From the face of the complaint, therefore, it appears that

19

Plaintiff's some if not all of his claims are unexhausted and subject to dismissal. If Plaintiff

20

did exhaust his administrative remedies with respect to any or all of those claims before

21

filing this action, he may amend his complaint to so allege, as set forth below.

22

III.

Legal Claims

23

A.

24

The Due Process Clause of the Fourteenth Amendment protects a post-arraignment

Use of Excessive Force

25

pretrial detainee from the use of excessive force that amounts to punishment. Graham v.

26

Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39

27

(1979)); see Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002)

28
5

1

(Graham explicates standards applicable to pretrial detention excessive force claim in this

2

circuit) (citations omitted); see also, Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th

3

Cir. 2010) ("Although the Fourteenth Amendment's Due Process Clause, rather than the

4

Eighth Amendment's protection against cruel and unusual punishment, applies to pretrial

5

detainees, we apply the same standards in both cases.") (internal citations omitted).

6

To determine whether particular restrictions and conditions accompanying pretrial

7

detention amount to punishment in the constitutional sense of the word, the district court first

8

looks to whether the disability imposed is for the purpose of punishment or whether it is but

9

an incident of some other legitimate governmental purpose. Bell, 441 U.S. at 538. Absent a

United States District Court
For the Northern District of California

10

showing of an express intent to punish, whether a restriction amounts to punishment will

11

generally turn on whether there is an alternative, rational purpose for the restriction, and

12

whether the restriction then appears excessive in relation to that purpose. Id. If a restriction

13

or condition is not reasonably related to a legitimate goal, i.e., if it is arbitrary or purposeless,

14

the court may infer that the purpose of the action is punishment. Id. at 539.

15

Here, the Court notes that Plaintiff acknowledges that his bipolar disorder may be the

16

cause of his thoughts that Defendants are violating his rights. Therefore, it is possible that

17

some, if not all, of Plaintiff's allegations are the product of his bipolar disorder and not actual

18

occurrences. For this initial review, however, the Court considers all of Plaintiff's

19

allegations. In the future, if Plaintiff submits an amended complaint, he is urged to

20

distinguish Defendants' actual conduct from what he may imagine their conduct to be.

21
22
23
24
25
26
27

Plaintiff's allegation that Officers Barbasa, Villagomez, and Guzman called him a
"rapist" and a "snitch" is insufficient to state a claim for cruel and unusual punishment under
the Fourteenth Amendment because verbal abuse and name-calling do not rise to the level of
a constitutional violation. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).
Plaintiff's allegation that Officers Prasa and Terry opened the door to his cell, by
itself, does not rise to the level of excessive force. Officers would, in the ordinary course of
business at SCCJ, open the doors of inmates' cells and, therefore, the purpose in opening a

28
6

1
2

cell door would not be to punish Plaintiff.
Plaintiff's allegation that Officers Torres and Blundo were "trying to set [Plaintiff]-up

3

[to be] attack[ed] by [an]other inmate" could be cognizable as a constitutional violation.

4

However, such a claim is conclusory because Plaintiff provides no further information

5

regarding how these officers "set up" the alleged attack or if the attack occurred at all.

6

Therefore, the Court is unable to determine whether Officers Torres and Blundo acted

7

unconstitutionally. However, even if Plaintiff could establish a violation, it appears that he

8

has not exhausted his administrative remedies regarding this claim.

9

Plaintiff's allegations that Defendants threatened to beat or "hang" him and threatened

United States District Court
For the Northern District of California

10

to allow other inmates to stab him or retaliate by killing his daughter could also rise to the

11

level of constitutional violations. However, Plaintiff does not allege the specific officers who

12

were responsible for these acts.

13
14
15
16
17
18

Although Plaintiff lists the names of many officers, he associates only a few of them
with any improper conduct. As indicated above, Plaintiff must allege the specific conduct
undertaken by each Defendant that deprived him of a constitutional right. Plaintiff fails to do
this, but shall be given leave to amend his complaint to cure this deficiency.
Based on the foregoing, the Court dismisses with leave to amend Plaintiff's
aforementioned claims so that he may cure the noted deficiencies.

19

B.

Unsanitary Living Conditions

20
21
22
23
24
25
26
27

The Eighth Amendment covers not only the use of force on prisoners but also sets a
minimum level for prison conditions, i.e., they may not amount to cruel and unusual
punishment. Again, the Due Process Clause, instead of the Eighth Amendment, protects a
post-arraignment pretrial detainee against cruel and unusual punishment related to unsanitary
jail conditions. See Simmons, 609 F.3d at 1017. However, the same standards apply. Id.
The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509

28
7

1

U.S. 25, 31 (1993). Prison officials must provide prisoners with the basic necessities of life

2

such as food, clothing, shelter, sanitation, medical care and personal safety. Farmer, 511

3

U.S. at 832. In a conditions of confinement claim under the Eighth Amendment, the prisoner

4

must show that: (1) the deprivation is, objectively, sufficiently serious, and (2) the prison

5

official acted with a sufficiently culpable state of mind, i.e., deliberate indifference. Id. at

6

834. The official must both be aware of facts from which the inference could be drawn that a

7

substantial risk of serious harm exists, and he must also draw the inference. Id. at 837.

8

The allegations that Defendants contaminated Plaintiff's food with urine or

9

contaminated his cell water could state a cognizable unsanitary living conditions claim if

United States District Court
For the Northern District of California

10

Plaintiff had named the person or persons responsible for these actions. Plaintiff must also

11

further elaborate on each claim in order for the Court to determine if these combined acts

12

created an unconstitutional living condition. See Leer, 844 F.2d at 633 (when prisoner seeks

13

injunctive relief from various personnel responsible for operating prison, focus is on whether

14

combined acts and omissions created unconstitutional living condition). Therefore, this

15

claim is dismissed with leave to amend for Plaintiff to correct the aforementioned pleading

16

deficiencies.

17

C.

Deliberate Indifference to Serious Medical Needs

18
19

Deliberate indifference to serious medical needs violates the Eighth Amendment's

20

proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104

21

(1976). A pre-trial detainee's claim for deliberate indifference to medical needs derives from

22

the Due Process Clause rather than the Eighth Amendment's protection against cruel and

23

unusual punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)

24

(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). A determination of "deliberate

25

indifference" involves an examination of two elements: the seriousness of the prisoner's

26

medical need and the nature of the defendant's response to that need. McGuckin v. Smith,

27

974 F.2d 1050, 1059 (9th Cir. 1992). A "serious" medical need exists if the failure to treat a

28
8

1

prisoner's condition could result in further significant injury or the "unnecessary and wanton

2

infliction of pain." Id. (citing Estelle, 429 U.S. at 104). A prison official is deliberately

3

indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards

4

that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 837.

5

In his complaint, Plaintiff briefly mentions that he "is still denied mental health

6

treatment and housing in mental health ward." Compl. at 3(10). Such a claim is conclusory,

7

and, it could be duplicative because, as mentioned above, in his 2011 case Plaintiff has

8

previously raised claims related to the jail medical staff's failure to treat his serious mental

9

health needs. Plaintiff's new allegation could state a claim for deliberate indifference to his

United States District Court
For the Northern District of California

10

serious mental health needs if he named the individuals responsible and specified that the

11

individual denied such treatment with the requisite state of mind of deliberate indifference.

12

Accordingly, this claim is dismissed with leave to amend for Plaintiff to cure this

13

deficiency.
14
15

IV.

Request for Temporary Restraining Order
Plaintiff seeks a TRO directing Defendants to stop harassing him. Compl. at 3(1). A

16
17

temporary restraining order (TRO) may be granted without written or oral notice to the

18

adverse party or that party's attorney if: (1) it clearly appears from specific facts shown by

19

affidavit or by the verified complaint that immediate and irreparable injury, loss or damage

20

will result to the applicant before the adverse party or the party's attorney can be heard in

21

opposition, and (2) the applicant's attorney (Plaintiff himself in this case, as he proceeds pro

22

se) certifies in writing the efforts, if any, which have been made to give notice and the

23

reasons supporting the claim that notice should not be required. Fed. R. Civ. P. 65(b).

24

Plaintiff has not satisfied both requirements. Therefore the request for a TRO is DENIED.

25

V.

26
27

Request for Appointment of Counsel
In his complaint, Plaintiff requests the appointment of counsel to represent him in this

action.

28
9

1

The Court is unable to assess at this time whether exceptional circumstances exist

2

which would warrant seeking volunteer counsel to accept a pro bono appointment. The

3

proceedings are at an early stage and it is premature for the Court to determine Plaintiff's

4

likelihood of success on the merits. Moreover, Plaintiff has been able to articulate his claims

5

adequately pro se in light of the complexity of the issues involved. See Agyeman v.

6

Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). In addition, Plaintiff has

7

been directed to file an amended complaint to cure the pleading deficiencies of his complaint.

8

Accordingly, the interests of justice do not require appointment of counsel at this time, and

9

Plaintiff's request is DENIED.

United States District Court
For the Northern District of California

10
11

CONCLUSION
For the foregoing reasons,

12
13

IT IS HEREBY ORDERED THAT:

14

1. Plaintiff's Fourteenth Amendment claim based on the allegation that Defendants

15

called Plaintiff a "rapist" and a "snitch" is DISMISSED WITHOUT LEAVE TO AMEND.

16

All other claims are DISMISSED WITH LEAVE TO AMEND, in accordance with the

17

instructions provided in this Order.

18

2. Within twenty-eight (28) days from the date of this Order, Plaintiff shall file an

19

amended complaint to correct the pleading deficiencies set forth above. Plaintiff may only

20

assert in an amended complaint claims that he has administratively exhausted. Plaintiff may

21

file an amended complaint using the Court's civil rights complaint form, wherein he must

22

provide information regarding the exhaustion of administrative remedies with respect to all

23

the claims he wishes to pursue in this action. Plaintiff must write the case number for this

24

action -- Case No. C 12-3426 SBA (PR) -- on the form, clearly label the complaint

25

"Amended Complaint," and complete all sections of the form. Because an amended

26

complaint completely replaces the original complaint, Plaintiff must include in it all the

27

claims he wishes to present. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied,

28

506 U.S. 915 (1992); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542,
10

1

1546 (9th Cir. 1989). He may not incorporate material from the original complaint by

2

reference. Plaintiff's failure to file an amended complaint within the twenty-eight-day

3

deadline will result in the dismissal of all claims without prejudice, with the exception of

4

the claims that the Court has found to be cognizable in this Order.

5
6

3. Plaintiff's request for a TRO is DENIED.
4. Plaintiff's request for appointment of counsel is DENIED.

7
8
9
United States District Court
For the Northern District of California

10

5. The Clerk of the Court is directed to send Plaintiff a blank civil rights complaint
form with his copy of this Order.
IT IS SO ORDERED.

11
12

DATED: 6/10/13
SAUNDRA BROWN ARMSTRONG
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
G:\PRO-SE\SBA\CR.12\Ortega3426.DWLVAM.wpd

11

1
2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

3
4
5

CARLOS A. ORTEGA et al,
Case Number: CV12-03426 SBA

6
7

Plaintiff,
CERTIFICATE OF SERVICE
v.

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

10

CORRECTIONAL OFFICERS et al,
Defendant.
/

11
12
13
14
15
16

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 June 10, 2013, 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.

17
18
19
20
21
22

Carlos Armando Ortega #09071890
Santa Clara County Jail
CTL532
885 N. San Pedro Street
San Jose, CA 95110

23
24

Dated: June 10, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

25
26
27
28
G:\PRO-SE\SBA\CR.12\Ortega3426.DWLVAM.wpd

12