Bayramoglu v. Cate et al

Filing 8

ORDER OF PARTIAL DISMISSAL AND SERVICE. Signed by Judge Yvonne Gonzalez Rogers on 10/30/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/30/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FIKRI BAYRAMOGLU,

No. C 13-1094 YGR (PR)

Plaintiff,

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ORDER OF PARTIAL DISMISSAL
AND SERVICE

vs.

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MATTHEW CATE, et al.,

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Defendants.
_______________________________________/

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INTRODUCTION

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United States District Court
For the Northern District of California

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Plaintiff, a state prisoner, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983

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against a number of officials at the California Training Facility ("CTF") in Soledad, California,

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where Plaintiff was formerly incarcerated. Plaintiff names the following as Defendants: California

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Department of Corrections and Rehabilitation ("CDCR") Secretary Matthew Cate; CTF Warden

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Ben Curry; CTF Lieutenants C. C. Hancock and J. Vera; CTF Appeals Coordinator A. P. Santiago;

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CTF Correctional Officers D. Branch, C. B. Tucker, K. Huffman, and H. K. Huihui. Plaintiff seeks

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monetary damages. Plaintiff has been granted leave to proceed in forma pauperis.

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BACKGROUND
I.

Case No. C 11-3556 YGR (PR).
The claims in this action were previously filed in Plaintiff's prior civil rights action, Case

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No. C 11-3556 YGR (PR). In an Order dated January 10, 2013, the Court transferred that action to

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the Central District. The Court noted in its January 10, 2013 Order that his action had been

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transferred twice before, "apparently because [P]laintiff assert[ed] that some of the actions described

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occurred in multiple districts." (Jan. 10, 2013 Order in Case No. C 11-3556 YGR (PR) at 1.)

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Prior to transferring that action, in an Order dated December 21, 2011, the Court served

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claims against Defendants Hancock, Vera, Santiago, and Branch under the First and Eighth

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Amendments. On March 19, 2102, Plaintiff filed an Amended Complaint. Thereafter, Defendants

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filed a "Motion for Screening of First Amended Complaint; Request to Vacate Current Scheduling

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Order and Set New Schedule in this Case."

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In its January 10, 2013 Order, the Court reviewed Plaintiff's Amended Complaint, which

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stated that he "was at all times relevant to this action a prisoner incarcerated at the Chuckawalla

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State Prison." (Jan. 10, 2013 Order at 1 (citing Am. Compl. at 5).) The Court determined that "[a]

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substantial part of the events of omissions giving rise to the claims occurred, and the defendants

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named reside, in Riverside County, which lies within the venue of the Central District of

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California." (Id. (citing 28 U.S.C. § 84(b)).) The Court found that venue properly belonged in the

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Central District and ordered the Clerk to transfer the action to that district. (Id.) The Court

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dismissed without prejudice any claims related to actions occurring in the Northern and Eastern

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Districts. Thus, the operative complaint in his prior action would have only contained claims

United States District Court
For the Northern District of California

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related only to actions occurring in the Central District. The Court instructed Plaintiff that if he

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sought relief on his Northern or Eastern District claims, he "may file separate civil rights actions in

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those districts." (Id. at 2.) Finally, the Court stated: "Any new action filed here in the Northern

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District may raise only those claims related to alleged constitutional violations that occurred here in

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the Northern District." (Id.)

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II.

The Instant Action
On March 11, 2013, Plaintiff filed the instant action containing his Northern District claims

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from the aforementioned prior action, Case No. C 11-3556 YGR (PR). Therefore, the Court will

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review the instant complaint below.
DISCUSSION

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I.

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

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that

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are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings

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must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the
claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement

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need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it

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rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in order to

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state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's obligation to

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provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be

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enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.

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Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a

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claim to relief that is plausible on its face." Id. at 1974. The United States Supreme Court has

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recently explained the "plausible on its face" standard of Twombly: "[w]hile legal conclusions can

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United States District Court
For the Northern District of California

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provide the complaint's framework, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine whether

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they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) 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 law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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II.

Legal Claims

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A.

Retaliation

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On May 21, 2008, Plaintiff filed a "staff complaint" against CTF Sergeant E. Banales.

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(Compl. at 3.) Plaintiff claims that Defendant Hancock retaliated against Plaintiff by issuing a

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"bogus" disciplinary charge for "threatening" Sgt. Banales after Plaintiff filed the aforementioned

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staff complaint. (Id.) Plaintiff claims that Defendant Vera found him guilty of "Threatening Staff,"

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and Plaintiff was assessed a sixty-day loss of good time credits as well as five months in the Secure

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Housing Unit ("SHU"). (Id.) Plaintiff also claims that Defendant Santiago conspired with them by

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denying his appeal of the guilty finding. (Id. at 2-3.) Plaintiff claims that these actions violated his

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First and Fourteenth Amendments.

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The fact that a prisoner may have been innocent of disciplinary charges does not raise a due

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process issue; the Constitution demands due process, not error-free decision-making. See Ricker v.

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Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994). Therefore, Plaintiff's claim that Defendants Hancock

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and Vera violated his Fourteenth Amendment rights by disciplining him for charges of which he is

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innocent does not state a cognizable claim for relief.

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Meanwhile, Plaintiff's allegations that the aforementioned disciplinary measures were taken

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for statements he made in his "staff complaint," and that these statements were protected by the First

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Amendment. When liberally construed, these allegations state a cognizable claim against

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Defendants Hancock, Vera, and Santiago under the First Amendment for retaliation for Plaintiff's

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exercise of his First Amendment rights. See generally Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005) (footnote omitted).

United States District Court
For the Northern District of California

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B.

Claims Related to Administrative Appeals

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Plaintiff claims that Defendant Santiago failed improperly processed and denied appeals of

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administrative grievances. The denial or failure to process administrative grievances to process

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administrative is not a cognizable claim for relief because there is no constitutional right to a prison

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administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Therefore, the Court does not find

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cognizable Plaintiff's claims against Defendant Santiago for denying administrative appeals and

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improperly processing them. Accordingly, Plaintiff's claim is DISMISSED.

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C.

Excessive Force

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Plaintiff alleges that after he was found guilty of the aforementioned disciplinary charge,

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Defendant Branch -- who was one of the "segregation officers" at the SHU -- read him his "CDC

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114 lock-up order," "slammed [him] up against the wall," said "All you do is file a 602 . . . cuff up,"

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and applied handcuffs on him unnecessarily tightly as well as high on his arms. (Compl. at 4.)

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When liberally construed, this claim is cognizable as a violation of the Eighth Amendment against

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Defendant Branch for the use of excessive force.

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D.

Supervisory Liability

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Plaintiff has sued Defendant Tucker as the "supervisor" of Defendant Hancock. Meanwhile,

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the Court assumes Plaintiff has named Defendants Cate and Curry, the CDCR Secretary and CTF

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Warden, respectively, because they are responsible for running the prison and should be liable for

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the alleged retaliatory actions of their subordinates. This is a respondeat superior claim, that is, he

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seeks to hold Defendants Tucker, Cate and Curry liable as the superiors of the persons he contends

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violated his rights. This is, however, not a proper basis for Section 1983 liability. See Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989). The supervisory liability claim against Defendants

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Tucker, Cate and Curry is DISMISSED.

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E.

Placement in the SHU

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Plaintiff alleges that Defendants Huffman and Huihui are liable because of their involvement
in placing him in the SHU constitutes cruel and unusual punishment under the Eighth Amendment.

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However, it is well established that the Eighth Amendment's prohibition against cruel and unusual

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United States District Court
For the Northern District of California

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punishment is not violated by classification programs which pursue "important and laudable goals"

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and are instituted under the state's authority to operate correctional facilities. See Neal v. Shimoda,

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131 F.3d 818, 833 (9th Cir. 1997) (classification program designed to treat and reduce recidivism of

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sex offenders is well within state's authority to operate correctional facilities and does not violate

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contemporary standards of decency). Nor does misclassification inflict pain so as to be cruel and

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unusual punishment violative of the Eighth Amendment. See Hoptowit v. Ray, 682 F.2d 1237,

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1255-56 (9th Cir. 1982) overruled on other grounds, Sandin v. Conner, 515 U.S. 472 (1995); Ramos

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v. Lamm, 639 F.2d 559, 566-67 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). Accordingly,

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Plaintiff's Eighth Amendment claim against Defendants Huffman and Huihui relating to his

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placement in the SHU is DISMISSED.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Plaintiff's complaint states a cognizable claim against Defendants Hancock, Vera,

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and Santiago under the First Amendment for retaliation for Plaintiff's exercise of his First

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Amendment right. In addition, Plaintiff has stated a cognizable Eighth Amendment claim against

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Defendant Branch for the use of excessive force. Plaintiff's remaining claims are DISMISSED, as

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explained above.

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2.

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The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and

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all attachments thereto (Docket No. 1) and a copy of this Order to the following prison officials at

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CTF: Lieutenants C. C. Hancock and J. Vera; Appeals Coordinator A. P. Santiago; and

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Correctional Officer D. Branch. The Clerk of the Court shall also mail a copy of the complaint

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and a copy of this Order to the California State Attorney General's Office and to Deputy Attorney

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General Virginia Irene Papan, who represented these Defendants in Case No. C 11-3556 YGR

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(PR).1 Additionally, the Clerk shall mail a copy of this Order to Plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires

them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of

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United States District Court
For the Northern District of California

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Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

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such service unless good cause be shown for their failure to sign and return the waiver form. If

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service is waived, this action will proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve

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and file an answer before sixty (60) days from the date on which the request for waiver was sent.

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(This allows a longer time to respond than would be required if formal service of summons is

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necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that

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more completely describes the duties of the parties with regard to waiver of service of the summons.

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If service is waived after the date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the date on which the request for

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waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.

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4.

Defendants shall answer the complaint in accordance with the Federal Rules of Civil

Procedure. The following briefing schedule shall govern dispositive motions in this action:

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a.

No later than sixty (60) days from the date their answer is due, Defendants

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shall file a motion for summary judgment or other dispositive motion. The motion must be

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supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil

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Procedure 56, and must include as exhibits all records and incident reports stemming from the

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The Court notes Defendant Vera has retired; therefore, Attorney Papan would be able to
inform the Court as to where this Defendant can be served.
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events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice so

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that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose

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the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand

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must be served concurrently with motion for summary judgment). A motion to dismiss for failure to

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exhaust available administrative remedies must be accompanied by a similar notice. Stratton v.

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Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out in

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Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), must be served concurrently with motion to

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dismiss for failure to exhaust available administrative remedies).
If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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United States District Court
For the Northern District of California

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they shall so inform the Court prior to the date the summary judgment motion is due. All papers

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filed with the Court shall be promptly served on Plaintiff.

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b.

Plaintiff's opposition to the dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight (28) days after the date on which Defendants'

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motion is filed.

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c.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do

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in order to oppose a motion for summary judgment. Generally, summary judgment must be granted

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when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that

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would affect the result of your case, the party who asked for summary judgment is entitled to

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judgment as a matter of law, which will end your case. When a party you are suing makes a motion

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for summary judgment that is properly supported by declarations (or other sworn testimony), you

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cannot simply rely on what your complaint says. Instead, you must set out specific facts in

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declarations, depositions, answers to interrogatories, or authenticated documents, as provided in

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Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show

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that there is a genuine issue of material fact for trial. If you do not submit your own evidence in

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opposition, 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. Rand, 154 F.3d at 962-63.

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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Plaintiff also is advised that a motion to dismiss for failure to exhaust available

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administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without

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prejudice. You must "develop a record" and present it in your opposition in order to dispute any

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"factual record" presented by the defendants in their motion to dismiss. Wyatt, 315 F.3d at 1120

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n.14. You have the right to present any evidence to show that you did exhaust your available

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administrative remedies before coming to federal court. Such evidence may include:

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(1) declarations, which are statements signed under penalty of perjury by you or others who have

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personal knowledge of relevant matters; (2) authenticated documents -- documents accompanied by

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a declaration showing where they came from and why they are authentic, or other sworn papers such

United States District Court
For the Northern District of California

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as answers to interrogatories or depositions; (3) statements in your complaint insofar as they were

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made under penalty of perjury and they show that you have personal knowledge of the matters state

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therein. In considering a motion to dismiss for failure to exhaust, the court can decide disputed

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issues of fact with regard to this portion of the case. Stratton, 697 F.3d at 1008-09.

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(The Rand and Wyatt/Stratton notices above do not excuse Defendants' obligation to serve

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said notices again concurrently with motions to dismiss for failure to exhaust available

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administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)

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d.

date Plaintiff's opposition is filed.

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Defendants shall file a reply brief no later than fourteen (14) days after the

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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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Discovery may be taken in this action in accordance with the Federal Rules of Civil

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Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose

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Plaintiff and any other necessary witnesses confined in prison.

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6.

All communications by Plaintiff with the Court must be served on Defendants or

their counsel, once counsel has been designated, by mailing a true copy of the document to them.
7.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address and must comply with the Court's orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes
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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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8.

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

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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DATED:

October 30, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.13\Bayramoglu1094.service.wpd

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