Webb v. Ahern et al

Filing 5

ORDER OF PARTIAL DISMISSAL AND SERVICE. Habeas Answer or Dispositive Motion due by 9/11/2017. Signed by Judge Yvonne Gonzalez Rogers on 7/11/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/11/2017)

Download PDF
1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CEDRIC WEBB, Case No. 16-cv-06892-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL AND SERVICE v. 6 7 GREGORY AHERN, et al., Defendants. 8 9 10 I. INTRODUCTION Plaintiff, a state prisoner who is currently incarcerated at California State Prison-Solano United States District Court Northern District of California 11 (“CSP-Solano”), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, stemming from 12 a July 18, 2014 incident during which excessive force was used against him while he had been 13 previously incarcerated at the Santa Rita County Jail (“SRCJ”). Plaintiff, who is an African 14 American, further alleges that “the excessive force in which he was subjected was predicate[d] on 15 a racial animus in violation of 42 [U.S.C.] § 1985 in which Caucasian deputies conspired to 16 assault plaintiff based on race.” Dkt. 1 at 3.1 17 Plaintiff names the following Defendants from the Alameda County Sheriff’s Office: 18 Sheriff Gregory Ahern; Deputy Sheriff Jenkins; Lieutenant C. Nobriga; Sergeant R. MacIntire; 19 “Sheriff’s Deputies John Does (1-6)”; and “Chief Medical Officer (CMO) John Doe (7).” Id. 20 Plaintiff seeks injunctive relief and monetary damages. 21 22 23 24 Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in a separate written Order. Venue is proper because the events giving rise to the claim are alleged to have occurred at SRCJ, which is located in this judicial district. See 28 U.S.C. § 1391(b). 25 26 27 1 28 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by Plaintiff. 1 2 II. DISCUSSION A. Injunctive Relief Claims As mentioned above, Plaintiff seeks both injunctive relief as well as monetary damages. 3 The jurisdiction of the federal courts depends on the existence of a “case or controversy” under 4 Article III of the Constitution. PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). A claim is 5 considered moot if it has lost its character as a present, live controversy, and if no effective relief 6 7 can be granted: “Where the question sought to be adjudicated has been mooted by developments subsequent to filing of the complaint, no justiciable controversy is presented.” Flast v. Cohen, 392 8 U.S. 83, 95 (1968). Where injunctive relief is involved, questions of mootness are determined in 9 light of the present circumstances. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996). 10 When an inmate has been transferred to another prison and there is no reasonable 11 United States District Court Northern District of California expectation or demonstrated probability that he will again be subjected to the prison conditions 12 from which he seeks injunctive relief, the claim for injunctive relief should be dismissed as moot. 13 See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). A claim that the inmate might be re14 transferred to the prison where the injury occurred is too speculative to overcome mootness. Id. 15 Plaintiff seeks injunctive relief to remedy his alleged injuries stemming from various 16 constitutional violations during his previous incarceration at SRCJ. However, Plaintiff has since 17 been transferred to CSP-Solano. Because Plaintiff is no longer incarcerated at SRCJ, his claims 18 for injunctive relief based on his confinement at SRCJ are DISMISSED as moot. The Court now 19 proceeds to review Plaintiff’s remaining claims for monetary damages. 20 21 22 B. Claims for Monetary Damages 1. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 25 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 26 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 27 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 28 2 1 2 Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements, 3 namely that: (1) a right secured by the Constitution or laws of the United States was violated, and 4 (2) the alleged violation was committed by a person acting under the color of state law. West v. 5 Atkins, 487 U.S. 42, 48 (1988). 6 7 2. Eighth Amendment Claims A prisoner has the right to be free from cruel and unusual punishment, including physical 8 abuse by guards. Whenever prison officials stand accused of using excessive physical force in 9 violation of the Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 11 United States District Court Northern District of California 10 Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers, 475 U.S. 312, 317 (1986)). 12 In addition, deliberate indifference to a prisoner’s serious medical needs amounts to the 13 cruel and unusual punishment prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 14 97, 104 (1976). The requirements for mental health care are the same as those for physical health 15 care needs. See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). A prison official 16 violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged 17 is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to 18 the inmate’s health. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 19 Plaintiff alleges that on July 18, 2014, he was subjected to excessive force by Defendant 20 Jenkins. Dkt. 1 at 6-7. Specifically, Plaintiff alleges that on the date of the incident he was 21 summoned to the inmate canteen. Id. at 5. Upon arriving at the canteen, Plaintiff, who suffers 22 from “mental health issues” and claims to be “borderline educational illiterate,” believed there was 23 a discrepancy between the order he had placed for canteen items and those items he received. Id. 24 at 5-6. Plaintiff resolved the issue with the employees working at the canteen, and Plaintiff 25 apologized for any issue caused to those present, which included a “civilian female canteen 26 employee,” “inmate canteen workers,” and Defendant Jenkins. Id. at 6. Defendant Jenkins called 27 Plaintiff “stupid,” which embarrassed and humiliated Plaintiff, causing him to say, “That’s why 28 nobody likes you” as he passed Defendant Jenkins. Id. Plaintiff’s comment caused Defendant 3 Jenkins to call Plaintiff back and have him place his hands behind his back, with which Plaintiff 2 complied. Id. Defendant Jenkins then “twisted and pushed plaintiff’s right hand upward so 3 violently that plaintiff stepped forward to relieve himself of the pain,” after which Defendant 4 Jenkins “slammed plaintiff’s head into the table.” Id. Defendant Jenkins then grabbed Plaintiff. 5 Id. Plaintiff stepped forward “to escape the violent rage of Defendant Jenkins.” Id. Defendant 6 Jenkins “then dove at plaintiff,” but missed him and fell to the ground. Id. Plaintiff claims that 7 “John Does (1-2)” were “the two escorting deputies who failed to protect plaintiff from the assault 8 by Defendant Jenkins.” Id. They “took control” of Plaintiff and handcuffed him from behind. Id. 9 As they escorted Plaintiff out of the chow hall area, Defendant Jenkins “walked up and used his 10 closed fist to hit plaintiff in the jaw.” Id. at 6-7. Shortly thereafter, the “female civilian canteen 11 United States District Court Northern District of California 1 worker approached Defendant Jenkins, in the presence of Plaintiff and the escorting deputies and 12 told him that he was wrong for slamming plaintiff’s head into the table and for hitting plaintiff in 13 the jaw.” Id. at 7. Plaintiff then was escorted to and placed in an isolation cell where “John Does 14 (3-4),” who were deputies, ordered Plaintiff to lay on his stomach on the floor while they cuffed 15 his hands behind his back and called him “Nigga” several times. Id. Then, “John Does (1-2)” 16 entered the isolation cell along with “John Does (5-6),” who were also deputies. Id. These 17 defendants then “began to hit, kick, and stomp [on] plaintiff.” Id. Plaintiff told them that “he 18 could not breathe as one defendant stood on top of [his] back.” Id. Plaintiff claims that he started 19 “losing consciousness and then gaining consciousness.” Id. 20 Defendants then took photographs of Plaintiff’s facial injuries and took him to the medical 21 department where Plaintiff was given an ice pack and 400 milligrams of Motrin. Id. Plaintiff 22 alleges Defendant “John Doe (7),” who was the CMO at SRCJ, “failed to provide plaintiff with 23 an[] additional pain reliever after x-rays revealed that Plaintiff suffered from fractured ribs based 24 on the July 18, 2014 assault.” Id. at 9. Plaintiff was placed in Administrative Segregation, where 25 he remained until November 2014. Id. at 7. Plaintiff claims that he never was provided with a 26 disciplinary form or incident report. Id. 27 28 Plaintiff alleges that Defendant Ahern acted with deliberate indifference when he failed to implement a grievance system inside the SRCJ to investigate allegations of excessive force and 4 1 racism by conducting interviews with all eyewitnesses present during the incident. Id. at 9. 2 Further, Plaintiff alleges that Defendant Ahern failed to supervise, control, and train his 3 subordinates having been previously put on notice that his deputies “conspired to take inmates to 4 isolated area[s] of [SRCJ] to assault them based on race.” Id. Finally, Defendant Ahern 5 “implemented and maintained a policy inside [SRCJ] in which allegations of excessive force and 6 racism made by inmates against deputies entailed a review of the incident report made by deputies 7 accused of participating in the conspiracy to assault inmates predicate[d] on a racial animus and 8 failure to investigate . . . .” Id. Lastly, Plaintiff alleges that Defendants Nobriga and MacIntire, who handled Plaintiff’s 9 grievances, were deliberately indifferent to Plaintiff when they failed to investigate Plaintiff’s 11 United States District Court Northern District of California 10 allegations of excessive force and racism and further, that they participated in the conspiratorial 12 policy maintained by the SRCJ as implemented by Defendant Ahern. Id. at 10. Liberally construed, Plaintiff’s complaint states a cognizable Eighth Amendment claim, 13 14 relating to the use of excessive force as well as the failure to intervene, against Defendants 15 Jenkins, Ahern, Nobriga, MacIntire, and “John Does (1-6).” And liberally construed, Plaintiff’s 16 complaint states a cognizable Eighth Amendment claim of deliberate indifference to his serious 17 medical needs against “John Doe (7).” 18 3. Claims Against Doe Defendants As mentioned above, Plaintiff names “John Does (1-6)” and “John Doe (7),” whose names 19 20 he intends to learn through discovery. Dkt. 1 at 3. Although the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit, 21 22 see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t of Corrections, 23 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of alleged defendants 24 cannot be known prior to the filing of a complaint. In such circumstances, the plaintiff should be 25 given an opportunity through discovery to identify the unknown defendants, unless it is clear that 26 discovery would not uncover their identities or that the complaint should be dismissed on other 27 grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 28 1986). 5 Plaintiff must provide to the Court the names of “John Does (1-6)” and “John Doe (7)” by 1 2 the date scheduled in this Order for any served Defendant to file a dispositive motion. Failure to 3 do so will result in dismissal of “John Does (1-6)” and “John Doe (7)” without prejudice to 4 Plaintiff filing a new action against them. 5 4. Conspiracy or Section 1985 Claim Plaintiff alleges in a conclusory fashion that Defendants conspired to violate his 7 constitutional rights, or more specifically, that they “conspired to assault [him] based on race.” 8 Dkt. 1 at 3. He seeks relief under 42 U.S.C. § 1985(3). “The elements of a § 1985(3) claim are: 9 (1) the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; (2) an 10 act in furtherance of the conspiracy; and (3) a resulting injury.” Addisu v. Fred Meyer, Inc., 198 11 United States District Court Northern District of California 6 F.3d 1130, 1141 (9th Cir. 2000) (citation omitted). “A mere allegation of conspiracy without 12 factual specificity is insufficient.” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 13 (9th Cir. 1988); see Steshenko v. Albee, 442 F. Supp. 3d 1281, 1294 (N.D. Cal. 2014) (conspiracy 14 allegations under section 1985(3) found insufficient because plaintiff failed to allege a specific 15 agreement between defendants; the scope of the conspiracy; each defendant’s role in the 16 conspiracy; when and how the conspiracy operated; and what action was taken in furtherance of 17 that conspiracy). Plaintiff fails to state a claim. Alleging in a conclusory fashion that defendants conspired 18 19 to violate his rights is a “formulaic recitation of the elements of a cause of action,” and therefore is 20 insufficient to plead a claim. See Twombly, 550 U.S. at 555 (internal citations omitted). He fails 21 to allege a specific, as opposed to an assumed, agreement to deprive him of his rights, the scope of 22 the conspiracy, what each defendant’s specific role in the conspiracy was, etc. The present 23 allegations rest on speculation. It is insufficient to say that because defendants, who allegedly are 24 Caucasian, used excessive force against him, an African American, in violation of the Eighth 25 Amendment, there necessarily was a conspiracy to violate that right “based on race.” Dkt. 1 at 3. 26 Accordingly, his claims under section 1985 are DISMISSED. 27 III. 28 CONCLUSION For the foregoing reasons, the Court orders as follows: 6 1 1. Plaintiff states a cognizable Eighth Amendment claim, relating to the use of 2 excessive force as well as the failure to intervene, against Defendants Jenkins, Ahern, Nobriga, 3 and MacIntire. 4 2. Plaintiff’s allegations also state an Eighth Amendment claim, relating to the use of 5 excessive force as well as the failure to intervene, against “John Does (1-6),” and relating to 6 deliberate indifference to serious medical needs against “John Doe (7).” Plaintiff must provide to 7 the Court the names of “John Does (1-6)” and “John Doe (7)” by the dispositive motion due date 8 indicated below. Failure to do so will result in dismissal of “John Does (1-6)” and “John Doe (7)” 9 without prejudice to Plaintiff filing a new action against them. 3. Plaintiff’s claims under section 1985 are DISMISSED. 11 United States District Court Northern District of California 10 4. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 12 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 13 and all attachments thereto (dkt. 1), and a copy of this Order to the following Defendants at the 14 Alameda County Sheriff’s Office: Sheriff Gregory Ahern; Deputy Sheriff Jenkins; Lieutenant 15 C. Nobriga; and Sergeant R. MacIntire. The Clerk shall also mail a copy of the complaint and 16 a copy of this Order to the Alameda County Counsel’s Office in San Francisco. Additionally, the 17 Clerk shall mail a copy of this Order to Plaintiff. 18 5. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 19 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 20 Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on 21 behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 22 cost of such service unless good cause can be shown for their failure to sign and return the waiver 23 form. If service is waived, this action will proceed as if Defendants had been served on the date 24 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required 25 to serve and file an answer before sixty (60) days from the date on which the request for waiver 26 was sent. (This allows a longer time to respond than would be required if formal service of 27 summons is necessary.) Defendants are asked to read the statement set forth at the foot of the 28 waiver form that more completely describes the duties of the parties with regard to waiver of 7 1 service of the summons. If service is waived after the date provided in the Notice but before 2 Defendants have been personally served, the Answer shall be due sixty (60) days from the date on 3 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 4 whichever is later. 5 6. 6 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. 7 No later than sixty (60) days from the date their answer is due, Defendants 8 shall file a motion for summary judgment or other dispositive motion. The motion must be 9 supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 11 United States District Court Northern District of California 10 the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice 12 so that Plaintiff will have fair, timely, and adequate notice of what is required of him in order to 13 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 14 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 15 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 16 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 17 exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule 18 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 19 motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. 20 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available 21 administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), 22 should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to 23 exhaust is not clear on the face of the complaint, Defendants must produce evidence proving 24 failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence 25 viewed in the light most favorable to Plaintiff shows a failure to exhaust, Defendants are entitled 26 to summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment 27 28 2 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 8 1 should be denied and the district judge, rather than a jury, should determine the facts in a 2 preliminary proceeding. Id. at 1168. 3 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 4 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 5 filed with the Court shall be promptly served on Plaintiff. 6 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 7 and served on Defendants no later than twenty-eight (28) days after the date on which 8 Defendants’ motion is filed. 9 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 11 United States District Court Northern District of California 10 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 12 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 13 any fact that would affect the result of your case, the party who asked for summary judgment is 14 entitled to judgment as a matter of law, which will end your case. When a party you are suing 15 makes a motion for summary judgment that is supported properly by declarations (or other sworn 16 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 17 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 18 as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 19 documents and show that there is a genuine issue of material fact for trial. If you do not submit 20 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 21 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 22 F.3d at 962-63. 23 Plaintiff also is advised that—in the rare event that Defendants argue that the failure to 24 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 25 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 26 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 27 exhaust your available administrative remedies before coming to federal court. Such evidence 28 may include: (1) declarations, which are statements signed under penalty of perjury by you or 9 1 others who have personal knowledge of relevant matters; (2) authenticated documents— 2 documents accompanied by a declaration showing where they came from and why they are 3 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 4 in your complaint insofar as they were made under penalty of perjury and they show that you have 5 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 6 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 7 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 8 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 9 (The notices above do not excuse Defendants’ obligation to serve similar notices again concurrently with motions to dismiss for failure to exhaust available administrative remedies and 11 United States District Court Northern District of California 10 motions for summary judgment. Woods, 684 F.3d at 935.) d. 12 13 date Plaintiff’s opposition is filed. e. 14 15 16 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. 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 17 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to 18 depose Plaintiff and any other necessary witnesses confined in prison. 19 20 21 8. 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. 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 22 informed of any change of address and must comply with the Court’s orders in a timely fashion. 23 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 24 while an action is pending must promptly file a notice of change of address specifying the new 25 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 26 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 27 (2) the Court fails to receive within sixty days of this return a written communication from the pro 28 se party indicating a current address. See L.R. 3-11(b). 10 1 2 3 4 5 6 10. 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: July 11, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?