Spruiell v. Graves et al

Filing 3

ORDER OF PARTIAL DISMISSAL AND SERVICE: Habeas Answer or Dispositive Motion due by 6/5/2017. Signed by Magistrate Judge Donna M. Ryu on 4/6/17. (ig, COURT STAFF) (Filed on 4/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAMEIN DION SPRUIELL,

Case No. 16-cv-05385-DMR (PR)

Plaintiff,
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ORDER OF PARTIAL DISMISSAL;
AND SERVING COGNIZABLE CLAIMS

v.
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LIEUTENANT R. GRAVES, et al.,
Defendants.

United States District Court
Northern District of California

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I.

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

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stemming from his incarceration at Pelican Bay State Prison (“PBSP”). Plaintiff has consented to

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magistrate judge jurisdiction, and this matter has been assigned to the undersigned Magistrate

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Judge. Dkt. 1 at 6. He has also filed a motion for leave to proceed in forma pauperis, which will

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be granted in a separate written Order.
Venue is proper because the events giving rise to Plaintiff’s claims are alleged to have

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occurred at PBSP, which is located in this judicial district. See 28 U.S.C. § 1391(b).
Plaintiff names the following Defendants from PBSP: Lieutenant R. Graves; Correctional

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Officer D. Trone; Sergeant R. Navarro; and Warden R. E. Barnes. Plaintiff seeks monetary and

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punitive damages.

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II.

STANDARD OF REVIEW
A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which

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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. See 28 U.S.C. §1915A(b)(1),(2).

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

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right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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III.

DISCUSSION

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A.

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On July 7, 2013, Plaintiff received a memorandum labeled, “Pelican Bay State Prison

First Amendment and Due Process Claims

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Hunger Strike Informational Sheet—Refusing Food or Drink.” Dkt. 1 at 3.1 In this

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memorandum, Plaintiff was informed that refusing food was an inmate’s right and choice. Id.
From July 7, 2013 through July 10, 2013, Plaintiff “declined to eat the food offered to him

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United States District Court
Northern District of California

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because PBSP officials issued [him] a paper saying that it was his right to refuse to eat . . . .” Id.

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at 15.
On July 16, 2013, Defendant Navarro “retaliated against this plaintiff for exercising this

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right to refuse food or drinks by issuing this plaintiff a rules violation report (RVR) Log no. C13-

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07-0005 . . . .” Id. at 3. Plaintiff claims that Defendant Navarro’s disciplinary action was an

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adverse action taken because of Plaintiff exercised his right to free speech by participating in a

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hunger strike, i.e., a protected conduct. Liberally construed, Plaintiff states a cognizable claim of

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retaliation against Defendant Navarro.

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B.

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On July 17, 2013, Defendant Trone “issue[d] this plaintiff the RVR that [Defendant]

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Navarro had reported . . . .” Id. at 4. Defendant Trone then informed Plaintiff that he was going to

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serve as Plaintiff’s “Investigative Employee (IE),” to which Plaintiff had no objection. Id.

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Plaintiff asked Defendant Trone for a copy of “Operational Procedure 228 (OP 228) that was

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utilize[d] inside the report against Plaintiff because Plaintiff never heard of it or knew what it said

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in order to prepare a defense against the report at the disciplinary hearing.” Id. at 4-5.

Due Process Claim

On July 20, 2013, Defendant Graves served as the Senior Hearing Officer at Plaintiff’s

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Page number citations refer to those assigned by the court’s electronic case management filing
system and not those assigned by Plaintiff.
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disciplinary hearing. Id. at 7. Plaintiff informed Defendant Graves that he was “not prepared to

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proceed with the disciplinary hearing because [Defendant] Trone still ha[d] not c[o]me back with a

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copy of the OP 228.” Id. Defendant Graves refused to give Plaintiff a copy of OP 228 and instead

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continued with the hearing. Id. Plaintiff was found guilty of the RVR. Id. Plaintiff claims that

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Defendants Trone’s and Graves’s actions violated his due process rights because he was found

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guilty at a disciplinary hearing in which he was denied the opportunity to “review evidence” and

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“prepare an adequate defense.” Id. at 5, 7. The record shows that the guilty finding initially

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resulted in 90 days loss of credits. Id. at 10. However, on July 26, 2016, Plaintiff’s state superior

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court petition for a writ of habeas corpus (relating to this guilty finding) was granted. Id. Thus,
Plaintiff has since had his credits restored and disciplinary sanctions expunged. Id. Liberally

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United States District Court
Northern District of California

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construed, Plaintiff states a cognizable due process claim against Defendants Trone and Graves.

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C.

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Plaintiff sues Defendant Barnes in his supervisory capacity. Plaintiff does not allege facts

Supervisory Liability Claim

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demonstrating that Defendant Barnes violated his federal rights, but seems to claim Defendant

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Barnes is liable based on the conduct of his subordinates, Defendants Navarro, Trone, and Graves.

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There is, however, no respondeat superior liability under section 1983 solely because a defendant

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is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989). A supervisor generally “is only liable for constitutional violations of his subordinates

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if the supervisor participated in or directed the violations, or knew of the violations and failed to

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act to prevent them.” Id. A supervisor may also be held liable if he or she implemented “a policy

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so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of

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the constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.

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1991) (en banc). Plaintiff’s claim against Defendant Barnes is therefore DISMISSED without

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prejudice.

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IV.

CONCLUSION

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For the foregoing reasons, the court orders as follows:

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1.

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Plaintiff’s claim against Defendant Barnes is DISMISSED without prejudice. All

remaining claims may proceed, as explained above.
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2.

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

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

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and all attachments thereto (dkt. 1), a Magistrate Judge jurisdiction consent form, and a copy of

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this Order to the following Defendants at PBSP: Lieutenant R. Graves; Correctional Officer D.

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Trone; and Sergeant R. Navarro.

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The Clerk shall also mail a copy of the complaint and a copy of this Order to the State

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Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this

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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.

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United States District Court
Northern District of California

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

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

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cost of such service unless good cause be shown for their failure to sign and return the waiver

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

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

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the foot of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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Defendants have been personally served, the Answer shall be due sixty (60) days from the date on

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which the request for waiver was sent or twenty (20) days from the date the waiver form is filed,

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whichever is later. Defendants shall also respond to the Notice of Assignment of Prisoner

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Case to a United States Magistrate Judge for Trial by filing a consent/declination form on

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the date the Answer is due.

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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:
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

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

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the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice

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

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

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

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for failure to exhaust available administrative remedies must be accompanied by a similar notice.

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However, the court notes that under the new law of the circuit, in the rare event that a failure to
exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule

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United States District Court
Northern District of California

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12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion.

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Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315

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F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative

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remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a

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defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on

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the face of the complaint, Defendants must produce evidence proving failure to exhaust in a

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motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most

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favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment

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under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the

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district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at

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1168.

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If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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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.
b.

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Plaintiff’s opposition to the dispositive motion shall be filed with the court

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

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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Defendants’ motion is filed.
c.

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

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

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

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be granted when there is no genuine issue of material fact—that is, if there is no real dispute about

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any fact that would affect the result of your case, the party who asked for summary judgment is

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

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makes a motion for summary judgment that is properly supported by declarations (or other sworn

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testimony), you cannot simply rely on what your complaint says. Instead, you must set out
specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

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United States District Court
Northern District of California

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as provided in Rule 56(e), that contradicts the facts shown in the defendant’s declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not submit

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your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

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If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154

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F.3d at 962-63.

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Plaintiff also is advised that—in the rare event that Defendants argue that the failure to

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exhaust is clear on the face of the complaint—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. To avoid dismissal, you have the right to present any evidence to show that you did

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exhaust your available administrative remedies before coming to federal court. Such evidence

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may include: (1) declarations, which are statements signed under penalty of perjury by you or

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others who have personal knowledge of relevant matters; (2) authenticated documents—

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documents accompanied by a declaration showing where they came from and why they are

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authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements

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in your complaint insofar as they were made under penalty of perjury and they show that you have

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personal knowledge of the matters state therein. As mentioned above, in considering a motion to

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dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment

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motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed
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issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.
(The notices above do not excuse Defendants’ obligation to serve similar notices again

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concurrently with motions to dismiss for failure to exhaust available administrative remedies and

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motions for summary judgment. Woods, 684 F.3d at 935.)
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date Plaintiff’s opposition is filed.
e.

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

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.
5.

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

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

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United States District Court
Northern District of California

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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.

Upon a showing of good cause, requests for a reasonable extension of time will be

granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: April 6, 2017
______________________________________
DONNA M. RYU
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAMEIN DION SPRUIELL,

Case No. 4:16-cv-05385-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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R. GRAVES, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on April 6, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Damein Dion Spruiell ID: T-70693
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95531

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Dated: April 6, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU

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