Buchanan v. Garza et al

Filing 62

ORDER Granting In Part and Denying In Part Defendants' 46 Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6). Final Judgment without prejudice is entered as to Defendants Verkouteren, Garcia, Pederson and Contreras pursuant to Fed.R.Civ.P. 54(b). Signed by Judge Barry Ted Moskowitz on 7/27/10. (All non-registered users served via U.S. Mail Service)(jer)

- W V G Buchanan v. Garza et al

D o c . 62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I n this prisoner civil rights case, Whittier Buchanan ("Plaintiff"), is proceeding in pro se a n d in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). D e f en d a n ts Baker, Contreras, Fuga, Garcia, Garza, Limon, Pederson, Salcedo and Verkouteren h a v e filed a Motion to Dismiss Plaintiff's First Amendment Complaint ("FAC") pursuant to F ED.R .C IV.P . 12(b)(6) [Doc. No. 46]. The remaining Defendants, Sterling, Hodge and Grannis, E . GARZA; LUI FUGA; SILVIA G A R C IA ; ELIAS CONTRERAS; RAY B A K E R ; RICARDO LIMON; ANGEL S A L C E D O ; GARY PEDERSON; A N T H O N Y VERKOUTEREN; J A N E DOE; HODGE; STERLING; N O L A GRANNIS; JOHN DOE; Defendants. vs. W H I T T IE R BUCHANAN C D C R #K-02554, P la in tif f , Civil No. 08cv1290 BTM (WVG))

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

O R D E R GRANTING IN PART AND D E N Y I N G IN PART DEFENDANTS' M O T I O N TO DISMISS P L A IN T I F F 'S FIRST AMENDED C O M P L A IN T PURSUANT TO FED.R.CIV.P. 12(b)(6) [D o c . No. 46]

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w e re only recently served with Plaintiff's FAC and have until August 3, 2010 to file their A n sw er or a Rule 12 motion. [Doc. Nos. 55, 57, 59].1 I. F a c tu a l Background 2 In his First Amended Complaint, Plaintiff alleges that the events that gave rise to this a c tio n occurred while he was incarcerated at the Richard J. Donovan Correctional Facility (" R J D " ) from February 7, 2007 to October 23, 2007. (See FAC at 1.) In 2007, Plaintiff had a p e n d in g lawsuit against the California Substance Abuse Treatment Facility ("CSATF") for w h ich he requested that Defendant Sterling, the Legal Technician Assistant, provide him with c o p ie s of legal documents. (Id. at 4.) Plaintiff claims that Defendant Sterling's "lack of legal a ss is ta n c e" caused Plaintiff to "miss his Court deadline." (Id.) Because he claims that Sterling's a c tio n s "hindered his efforts to process his legal claims," Plaintiff filed an administrative g rie v a n c e against Sterling. (Id.) P lain tiff claims that when Sterling became aware of Plaintiff's grievances, she began to l o s e or misplace Plaintiff's legal documents and refused him access to the prison law library. (Id .) As a result, Plaintiff's lawsuit was dismissed. (Id.) Plaintiff further claims that Defendants Salcedo, Baker and Limon "were not supplying P la in tif f with indigent envelopes" so he filed an administrative grievance against Salcedo, Baker a n d Limon. (Id.) Plaintiff informed Salcedo that he had pending litigation which is why he n e e d e d the envelopes and requested her assistance to process his legal mail. (Id.) Because S a lc e d o refused to do so, Plaintiff filed another administrative grievance against Salcedo. (Id.) P la in tif f alleges that "in retaliation, Defendant Salcedo conspired with Defendants' Baker and L im o n " to not "pick up/process Plaintiff's legal mail to the courts." (Id.) Defendant Verkouteren came to Plaintiff's cell on June 3, 2007 to interview Plaintiff with re s p e c t to his administrative grievances regarding Salcedo, Baker and Limon. (Id. at 5.) P lain tiff alleges Defendant Verkouteren had Salcedo process one piece of Plaintiff's legal mail

Plaintiff has also named John and Jane Does as Defendants in this matter but a review of the Court's docket indicates that these Defendants have yet to be properly identified or served. The Court refers to the following facts based only on Plaintiff's version of the events as set forth in his First Amended Complaint. 2
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b u t he also informed Plaintiff that if Plaintiff continued to file administrative grievances re g a rd in g this issue, the Defendants would continue to refuse to process his legal mail. (Id.) P lain tiff claims that these statements also indicate a conspiracy between Verkouteren to retaliate a g a in s t Plaintiff for filing administrative grievances against Salcedo, Baker and Limon. (Id.) O n May 30, 2007, Plaintiff was standing outside of the "program office" when Defendant G a rz a emerged from the office and "gave Plaintiff a direct order to `stop filing 602's!'" When P la in tif f attempted to explain why he needed to file the grievances, Garza "abruptly cut Plaintiff o ff yelling `[racial explicative], you don't have any rights, you are a criminal, criminals don't h a v e rights.'" (Id.) Garza continued to use racially derogatory language towards him. (Id.) P la in tif f claims Defendant Garza "yanked his [stick] from his waistbelt" and ordered Plaintiff to "get down." (Id.) Plaintiff complied by laying down on his stomach at which time Garza o rd e re d Defendant Fuga and "Jane Doe" to "cuff him." (Id.) Plaintiff informed Defendants F u g a and Doe as they "began to jerk Plaintiff's arms behind his back" that he had a medical c h ro n o indicating that Plaintiff had a disability that provided for him to be handcuffed in the f ro n t and not behind his back due to a herniated disk. (Id.) Defendants Fuga and Doe ignored th is information and were "kneeing Plaintiff roughly in his back, neck and the lower parts" of h is body. (Id.) Plaintiff claims that a number of medical care employees and correctional o f f ic e rs observed this altercation but failed to protect him from injury. P la in tif f cried out "you're hurting me." (Id. at 6.) "Upon hearing this, Defendant Garza g a v e Defendants Jane Doe and Fuga a direct order to `hurt him.'" (Id.) Plaintiff claims that F u g a and Doe "became even more malicious and sadistic" by "jerk[ing] twice on Plaintiff's left a rm " which resulted in an "audible popping sound." (Id.) Plaintiff claims Defendant Garza c o n tin u e d to yell racial explicatives towards him and ordered Fuga and Doe to stand Plaintiff up. (Id .) As Plaintiff was crying, he claims that Defendant Garza "saw that he had actually `s ile n c e d ' Plaintiff" and ordered Fuga to take Plaintiff back to his cell. (Id.) Plaintiff asked F u g a to take him to the infirmary as he was in "extreme pain" but Fuga refused. Plaintiff c o n te n d s that Garza, Fuga and Doe entered into a conspiracy to deprive him of his constitutional r ig h t s .

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O n August 16, 2007, Plaintiff claims that he was asked by Defendant Hodge to "snitch" o n another inmate. (Id.) When Plaintiff refused, Hodge took Plaintiff's prescription sunglasses. (Id .) Because Plaintiff continued to refuse to be a "snitch," and due to the fact that Plaintiff filed a grievance against him, Hodge began acts of retaliation against Plaintiff. (Id.) Plaintiff claims th a t Hodge would take personal property from Plaintiff and give them to other inmates. (Id. at 7 .) Plaintiff alleges that Hodge would refuse to allow Plaintiff to attend church services or sing in the prison's gospel choir. (Id.) II. D EFENDANTS VERKOUTEREN, GARCIA, PEDERSON, SALCEDO AND CONTRERAS' M OTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b) T h e Court will first consider Defendants Verkouteren, Garcia, Salcedo, Pederson and C o n tre ra s arguments that claims against them found in Plaintiff's First Amended Complaint sh o u ld be dismissed for failing to exhaust available administrative remedies pursuant to F ED.R .C IV.P . 12(b) and 42 U.S.C. § 1997e(a). In the case, this Court has already found that Plaintiff failed to exhaust his administrative re m e d ie s with respect to Defendants' Verkouteren, Garcia, Pederson, and Contreras and granted th e ir previous Motion to Dismiss. (See Sept. 25, 2009 Order Adopting Report and

R e c o m m e n d a tio n Granting Motion to Dismiss at 1.) The claims that form the basis of these ac tio n have not changed with respect to the PLRA's exhaustion requirements. Thus, the Court h a s already considered the arguments and evidence provided by all parties with regard to w h e t h e r or not Plaintiff properly exhausted his administrative remedies as to the claims against D e f en d a n ts Verkouteren, Garcia, Pederson and Contreras. The Court has already issued a ruling b a s e d on the same set of facts and case law and therefore, it is subject to the law of the case d o c trin e . See United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2003) ("Under the `law of the c a se ' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by th e same court, or a higher court, in the same case.") (citation omitted). /// /// ///

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F o r all the reasons set forth in the Report and Recommendation issued on February 26, 2 0 0 9 and this Court's Order adopting that recommendation, the claims against Defendants V e r k o u t e re n , Garcia, Pederson and Contreras are DISMISSED for failing to exhaust a d m in is tra tiv e remedies pursuant to 42 U.S.C. § 1997e. While the Court's September 25, 2009 Order may not have been clear to Plaintiff, he c a n n o t amend the claims against these Defendants in this action when the dismissal is for failing to properly exhaust administrative remedies. This is due to the fact that Plaintiff must now p ro p e rly exhaust his administrative remedies as to these Defendants which would then occur a fte r Plaintiff filed this action. The Ninth Circuit has held that any claims that a prisoner wishes to bring in an action must be exhausted on the date he files his initial complaint. See Vaden v. S u m m e rh ill, 449 F.3d 1047, 1051 (9th Cir. 2006). Thus, it is proper for this Court to dismiss all c la im s against Defendants Verkouteren, Garcia, Pederson, and Contreras without prejudice but a ls o without leave to amend in this action. If Plaintiff wishes to proceed with his claims against D e f en d a n ts Verkouteren, Garcia, Pederson, and Contreras he must file a separate action once h e has properly exhausted his administrative remedies. In addition, while Defendants

V e rk o u te re n , Garcia, Pederson, and Contreras have reitereated their position that Plaintiff failed to exhaust the claims against them, they also attack the claims against them on the merits. The C o u rt will not consider these arguments as those arguments should be decided if and when P la in tif f files a separate action. D e f en d a n t Salcedo also brought a Motion to Dismiss the claims against him for failing to exhaust administrative remedies but Defendants concede in their Reply that Plaintiff did, in f a c t, exhaust his administrative remedies as to Defendant Salcedo. (See Defs.' Reply at 2, fn. 1 .) Defendants Salcedo did not claim, as the other Defendants did, in the previous Motion to D is m is s that Plaintiff had failed to exhaust his administrative remedies with respect to the claims a g a i n s t Salcedo. Thus, Defendant Salcedo's Motion to Dismiss for failing to exhaust

a d m in is tra tiv e remedies is DENIED. /// ///

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II.

D e fe n d a n ts ' Motion to Dismiss Plaintiff's Complaint A s id e from the claims against Defendants Verkouteren, Garcia, Pederson, and Contreras,

th e remaining Defendants seek dismissal of Plaintiff's claims contending that: (1) Plaintiff has f a ile d to adequate state an access to courts claim against any named Defendant; (2) Plaintiff has f a ile d to state a claim of conspiracy; (3) Defendants are entitled to qualified immunity; and (4) P lain tiff failed to comply with the requirements of California Government Claims Act. A. F ED.R .C IV.P . 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "`lack of a cognizable legal theory' o r `the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. R iv e r s id e Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's c o m p la in t must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2 0 0 7 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the c o u rt to draw the reasonable inference that the defendant is liable for the misconduct alleged." A s h c ro ft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) . In addition, factual allegations asserted by pro se petitioners, "however inartfully p le a d ed ," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v . Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rig h ts case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the d o u b t. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). B. P la in tiff's access to courts claim

P la in tif f 's first cause of action in his First Amended Complaint is titled "retaliatory denial o f Plaintiff's meaningful access to the courts which is guaranteed by the First and Fourteenth

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A m e n d m e n ts to the United States constitution.3 " (FAC at 7.) Defendants move to dismiss P la in tif f 's access to courts claim found in this first cause of action but fail to move with respect to Plaintiff's retaliation claim. Prison officials who deliberately interfere with the transmission of a prisoner's legal p a p e rs , or deny him access to a legitimate means to petition for redress for the purpose of th w a rtin g his litigation may violate the prisoner's constitutionally protected right of access to the c o u rts . Lewis v. Casey, 518 U.S. 343, 351-55 (1996); Vandelft v. Moses, 31 F.3d 794, 796 (9th C ir . 1994). However, in order to state a claim for denial of access to the courts, Plaintiff must a lle g e a specific actual injury involving a nonfrivolous legal claim, Lewis, 518 U.S. at 351-55, a n d must allege facts showing that he "could not present a claim to the courts because of the [ D e f en d a n ts '] failure to fulfill [their] constitutional obligations." Allen v. Sakai, 48 F.3d 1082, 1 0 9 1 (9th Cir. 1994). The right of access is only guaranteed for certain types of claims: direct a n d collateral attacks upon a conviction or sentence, and civil rights actions challenging the c o n d itio n s of confinement. Lewis, 518 U.S. at 354. Even among these types of claims, actual in ju ry will exist only if "a nonfrivolous legal claim had been frustrated or was being impeded." Id . at 353 & n.3. Thus, to state a claim for interference with the right of access to the courts, an in m a te must plead facts sufficient to show that prison officials have actually frustrated or im p e d e d a nonfrivolous attack on either his sentence or the conditions of his confinement. Id. a t 352-53. Here, Defendants argue that Plaintiff has failed to satisfy the "actual injury" requirement o f an access to courts claim. Plaintiff refers to a "lawsuit pending in the courts" and a lawsuit a g a in st the "California Substance Abuse Treatment Facility" but gives no other details with re s p e c t to these legal matters. (See FAC at 4, 7.) Plaintiff does not indicate the underlying n a tu re of any of these pending claims. As correctly noted by Defendants, Plaintiff must allege th e "underlying cause of action." Christopher v. Harbury, 536 U.S. 403, 415 (2002). Plaintiff

Several times throughout his First Amended Complaint, Plaintiff brings the same claims under several different Constitutional amendments. "Where an amendment `provides an explicit textual source of constitutional protection against a particular sort of government behavior,' it is that Amendment, that `must be the guide for analyzing the complaint.'" Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (citing Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)). Thus, the Court will consider Plaintiff's access to courts and retaliation claims as arising under the First Amendment. 7

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a lleg e s no facts to show that his claims are either a direct and collateral attack upon his c o n v ic t io n or sentence or a civil rights actions challenging the conditions of confinement and th a t it was "nonfrivolous." See Lewis, 518 U.S. at 353, 354. In fact, Plaintiff concedes in his O p p o s itio n that he failed to allege the facts giving rise to the underlying cause of action that he c la im s was dismissed by a court based on the actions of the Defendants. (See Pl.'s Opp'n at 12.) T h u s, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's access to courts c la im pursuant to FED.R.CIV.P. 12(b)(6). C. C o n s p ir a c y claims

D e f en d a n ts further argue that Plaintiff failed to state a conspiracy claim upon which relief m a y be granted. In his First Amended Complaint, Plaintiff claims that Defendants acted in a c o n s p ira c y to deprive him of his right to "file 602's" and bring a "lawsuit in the courts." (FAC a t 5.) Plaintiff refers to conspiracy allegations in his factual allegations but does not set forth a separate cause of action claiming conspiracy in his First Amended Complaint. Therefore, the C o u rt will liberally construe Plaintiff's conspiracy claims to arise under § 1983. T o state a claim of conspiracy under § 1983, however, Plaintiff must allege : "(1) the e x iste n c e of an express or implied agreement among the defendant[s] ... to deprive him of his c o n s titu tio n a l rights, and (2) an actual deprivation of those rights resulting from that agreement." A v a lo s v. Baca, 596 F.3d 583, 591 (9th Cir. 2010); see also Margolis v. Ryan, 140 F.3d 850, 8 5 3 (9th Cir. 1998) (plaintiff must allege a "meeting of the minds" to violate the constitution); W o o d ru m v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). "Vague and conclusory a lle g a tio n s of official participation in civil rights violations are not sufficient to withstand a m o tio n to dismiss." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. A ld a b e , 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy insufficient to support a claim under section 1983 or 1985). /// /// /// ///

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H e re , Plaintiff has not properly alleged a conspiracy claim because he cannot allege an " a ctu a l deprivation of those rights resulting from that agreement." Avalos, 596 F.3d at 591. As se t forth above, Plaintiff claims that there was a conspiracy to deprive him of access to the courts b u t as the Court has already found, Plaintiff has failed to properly allege an access to courts c laim . Thus, because Plaintiff has not properly alleged an "actual deprivation" of his

c o n stitu tio n a l rights, he has failed to state a conspiracy claim against any Defendant. T h e Court GRANTS Defendants' Motion to Dismiss Plaintiff's conspiracy claim p u rs u a n t to FED.R.CIV.P. 12(b)(6). D. Q u a lified Immunity

D e f en d a n ts also seek qualified immunity with respect to Plaintiff's denial of access and c o n sp ira c y claims. Because the Court has found that Plaintiff has not adequately stated an a c ce ss to courts claim or a conspiracy claim, the Court need not reach any issues regarding q u a lif ie d immunity. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) ("[The b e tter approach to resolving cases in which the defense of qualified immunity is raised is to d eterm in e first whether the plaintiff has alleged the deprivation of a constitutional right at all."); se e also Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If no constitutional right would have been v io la te d were the allegations established, there is no necessity for further inquiries concerning q u alified immunity."). E. C a lifo r n ia Government Claims Act and Immunity under California Law

D e f en d a n ts Baker, Limon, and Salcedo seek to dismiss Plaintiff's state law claims on the g r o u n d s that he failed to comply with the requirements of the California Government Claims A c t. Defendants Baker, Limon and Salcedo argue that any state law claims other than P lain tiff 's excessive force claims must be dismissed because Plaintiff failed to submit a d m in is tra tiv e claims regarding these matters as required by CAL. GOVT. CODE § 945.4. The C a lif o rn ia Government Claims Act requires that a claim against a state employee be presented to the Victim Compensation and Government Claims Board ("VCGCB") no more than six m o n th s after the cause of action accrues. CAL. GOVT. CODE § 945.6.

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In this matter, Defendants acknowledge that Plaintiff did bring such a claim as to the e x c es s iv e force issue but failed to file a claim as to any of the other state law claims Plaintiff p u rp o rts to bring in his First Amended Complaint. In support of their argument, Defendants h a v e supplied the declaration of Susan Antley, the Deputy Attorney General assigned to re p re s e n t Defendants in this matter. (See Declaration of Susan Antley.) In this declaration, Ms. A n tle y states that the Attorney General's office requested that the VCGCB provide d o c u m e n ta tio n of any and all claims made by Plaintiff. (Id. at ¶ 4.) Only one claim was found re la tin g to the May 30, 2007 excessive force allegations. (Id. at ¶ 5.) Plaintiff argues in re sp o n s e that he was not required to "name every Defendant" in his claim brought before the V C G C B . (See Pl.'s Opp'n at 20-21.) However, Plaintiff may not have to name every Defendant b u t he would have to identify each claim for which he seeks compensation. Thus, it does not a p p e a r that Plaintiff has properly alleged that he "presented" each claim to the VCGCB. Therefore, all of Plaintiff's state law claims, with exception of those found in Plaintiff's te n th cause of action in his First Amended Complaint relating to the claims of excessive force a re dismissed for failing to comply with CAL. GOVT. CODE § 945.4. III. R em a in in g Claims and Remaining Defendants D e f e n d a n ts did not move to dismiss Plaintiff's First Amendment retaliation claims, E ig h th Amendment excessive force claims, Eighth Amendment deliberate indifference to serious m e d ica l needs claims or Eighth Amendment failure to protect claims. Moreover, Defendants S te rlin g , Grannis and Hodge were only recently served with Plaintiff's First Amended Complaint a n d are due to file a responsive pleading no later than August 3, 2010. Once the parties have f u lly briefed the motions that are not yet filed and the Court issues a ruling, Plaintiff will be p ro v id e d the opportunity to: (1) file a Second Amended Complaint that corrects the deficiencies o f pleading noted by the Court in its Orders; or (2) notify the Court that Plaintiff intends to p ro c e ed with the claims that survive the Defendants' Motion to Dismiss. At this time, Plaintiff n e e d do nothing until a hearing date has been scheduled for the upcoming Motions and he may f ile an Opposition or a Notice of Non Opposition to those motions. ///

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IV .

C o n c lu s io n and Order F o r all the foregoing reasons, the Court hereby: (1 ) G R A N T S Defendants Verkouteren, Garcia, Pederson and Contreras' Motion to

D is m is s all claims against them without prejudice for failing to exhaust administrative remedies p u rs u a n t to 42 U.S.C. § 1997e and for all the reasons set forth in the Court's Order dated S ep tem b er 25, 2009. Because there are no remaining claims against these Defendants, and there is no just reason for delay, the Clerk of Court is directed to enter a final judgment, without p re ju d ice , as to Defendants Verkouteren, Garcia, Pederson and Contreras pursuant to F ED.R .C IV.P . 54(b). (2 ) D E N I E S Defendant Salcedo's Motion to Dismiss Plaintiff's First Amended

C o m p la in t for failing to exhaust his administrative remedies against Salcedo; (3 ) G R A N T S Defendants Baker, Fuga, Garza, Limon, and Salcedo's Motion to

D is m is s Plaintiff's access to courts claim for failing to state a claim upon which relief may be g r a n te d ; (4 ) G R A N T S Defendants Baker, Fuga, Garza, Limon, and Salcedo's Motion to

D is m is s Plaintiff's conspiracy claim for failing to state a claim upon which relief may be g r a n te d ; (5 ) G R A N T S Defendants Baker, Fuga, Garza, Limon, and Salcedo's Motion to

D is m is s Plaintiff's state law claims with the exception of those found in Plaintiff's Tenth Cause o f Action in his First Amended Complaint for failing to comply with the requirements of the C a lifo rn ia Government Claims Act. I T IS SO ORDERED. D A T E D : July 27, 2010

H o n o ra b le Barry Ted Moskowitz U n ite d States District Judge

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