Nunez v. Ramirez

Filing 10

REPORT AND RECOMMENDATION For Order Granting Defendant's Motion To Dismiss Count One Of Plaintiff's Complaint: It is recommended that the District Court grant with prejudice Defendant's Motion to Dismiss Count One (Doc. 6 ). Objections to R&R due by 12/3/2009. Replies due by 12/23/2009. Signed by Magistrate Judge Barbara Lynn Major on 11/12/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (jrl).

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 EDUARDO NUNEZ, v. C/O F. Ramirez, Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) Case No. 09cv413-WQH (BLM) REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT ONE OF PLAINTIFF'S COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(c) and 72.3(f) of the United States District Court for the Southern District of California. Eduardo Nunez (hereinafter "Plaintiff"), a prisoner currently

incarcerated at Centinela State Prison in Imperial, California, is proceeding pro se and in forma pauperis with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. First Amendment (Count One) and Doc. No. 1. Eighth Plaintiff claims his (Count Two)

Amendment

constitutional rights were violated by Correctional Officer F. Ramirez (hereinafter "Defendant") during an incident on May 12, 2007. In the instant Motion to Dismiss Count One of Id.

Plaintiff's

Complaint, filed on July 28, 2009, Defendant asserts that Plaintiff
09cv0413-WQH (BLM)

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

fails to allege any facts to show that his speech was protected or to support a retaliation claim. Doc. No. 6 at 2. As such, Defendant

argues that Plaintiff does not state an actionable section 1983 claim for a violation of his First Amendment right to freedom of speech. Id. Plaintiff filed an Opposition on August 31, 2009. Doc. No. 9.

Defendant did not file a reply. This Court found the matter appropriate for decision on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). Doc. No. 7.

This Court has considered the Complaint, Defendant's Motion to Dismiss ("Def.'s Mem."), Plaintiff's Opposition ("Pl.'s Opp.") and all supporting documents submitted by the parties. For the reasons set

forth below, this Court RECOMMENDS that Defendant's Motion to Dismiss Count One of Plaintiff's Complaint be GRANTED. FACTUAL BACKGROUND Plaintiff alleges that while standing with a group of inmates in the prison "A" Yard on May 12, 2007, he was confronted by Defendant and four other correctional officers. Complaint at 3. Defendant, using

profanity, accused Plaintiff's group of drinking illegally manufactured alcohol in the facility. Id. Plaintiff replied, "If you saw who was

drinking why don't you address that person instead of disrespecting everybody." Id. Plaintiff and Defendant then exchanged a series of

insults in which they called each other "stupid." Id. Thereafter, one of the officers present, Sergeant Centeno, told Plaintiff to "strip out" for an unclothed body search. Id. Following

the Sergeant's orders, Defendant placed handcuffs on Plaintiff and Sergeant Centeno ordered Defendant to take Plaintiff to the "program office." Id. Defendant began to walk with Plaintiff and asked Sergeant

Centeno, "To the program office?" Id. Sergeant Centeno replied, "Yes." 2
09cv0413-WQH (BLM)

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

Id. Id.

Defendant asked Sergeant Centeno again, "To the program office?" Plaintiff claims the Sergeant did not audibly respond. Id.

Defendant directed his question to the Sergeant for a third time, "To the program office?" Id. Plaintiff then said, in Spanish, "Ya

mamasela." Id. Plaintiff claims Defendant immediately looked over his shoulder and yelled, "Do not strike me! Get down!" Id. Defendant pulled Plaintiff Id.

to the ground and began grinding his face into the floor.

Plaintiff crossed his legs to demonstrate that he was not resisting. Id. The brutality stopped when Lieutenant Caldwell arrived at the scene and ordered those present to put on latex gloves because Plaintiff was bleeding from the mouth. Id. at 4. Plaintiff was cleaned up, placed in Following his

leg irons, and escorted to the medical office. Id.

medical evaluation, Plaintiff described the incident in a videotaped interview. Id.

According to Plaintiff, Defendant's alleged conduct resulted in a denial of his federal constitutional rights to freedom of speech and freedom from cruel and unusual punishment. Complaint at 4-6. Plaintiff describes his pursuit of administrative relief as follows: First I wrote a staff complaint. It was granted in part. Not satisfied, I sent it to Sacramento 3rd level - it was denied but it was not returned to me. I was found guilty of the Rule Violation Report. On appeal, the Rule Violation Report got reissued to be reheard (3 times). On the fourth time, the charges were dismissed. I was released from Administrative Segregation after 8 months of punishment. Id. at 7. DEFENDANT'S MOTION TO DISMISS A. Legal Standard Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek dismissal of Count One of Plaintiff's Complaint on the grounds that 3
09cv0413-WQH (BLM)

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

Plaintiff fails to state a claim upon which relief can be granted. Def.'s Mem. A Rule 12(b)(6) motion tests the legal sufficiency of a Fed.R.Civ.P. 12(b)(6). Accordingly, the "focus of Schneider v.

plaintiff's claims.

any Rule 12(b)(6) dismissal . . . is the complaint."

California Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). When reviewing a Rule 12(b)(6) motion, the court may consider the facts alleged in the complaint and documents properly attached to it. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989). complaint The court also may consider documents the plaintiff's relies on and "whose authenticity no party

necessarily

questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. However, the

City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

court "may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Schneider, 151 F.3d at 1197 n.1 (emphasis in original). For purposes of a Rule 12(b)(6) motion, the court must accept as true all material factual allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. See Cholla When a

Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004).

plaintiff appears pro se, the court must be careful to construe the pleadings liberally and to afford the plaintiff any benefit of the doubt. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002);

Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). This rule of liberal construction is "particularly important" in civil rights cases. 1992). Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

However, the court is not permitted to "supply essential 4
09cv0413-WQH (BLM)

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

elements of the claim that were not initially pled."

Ivey v. Bd. of

Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief ..." Fed.R.Civ.P. 8(a). "Such a statement must simply `give the

defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" (2002). Detailed Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 factual allegations are not required, but

"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ---

U.S. ---, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A Plaintiff must set forth

"sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal Id.

conclusions are not.

If the court finds that a complaint has failed to state a claim, dismissal may be with or without leave to amend. F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Lopez v. Smith, 203 A court may consider

factual allegations outside of the complaint in determining whether to grant leave to amend. Cir. 2003). See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th

However, a pro se complaint may not be dismissed without

leave to amend unless "it is absolutely clear that the deficiencies of the Complaint could not be cured by amendment." Karim-Panahi, 839 F.2d

at 623 (citations and internal quotations omitted); see also Lopez, 203 5
09cv0413-WQH (BLM)

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

F.3d at 1130 (court should not dismiss complaint without leave to amend "unless it determines that the pleading could not possibly be cured by the allegation of other facts") (citation and internal quotations omitted). A court may also dismiss a complaint without leave to amend McQuillion v. Schwarzenegger, 369 F.3d

when amendment would be futile. 1091, 1099 (9th Cir. 2004). B.

Plaintiff's First Amendment Claim (Count 1) Plaintiff asserts that the May 12, 2007 incident described above

violated his First Amendment right to free speech.

Complaint at 3-4.

Defendant argues that Plaintiff's First Amendment claim fails because he "does not specify what the protected speech is," nor does he "put forth any facts that actually allege that Ramirez prevented him from

exercising his freedom of speech."

Def.'s Mem. at 4.

Defendant also

argues Plaintiff's claim fails because Defendant's actions "reasonably advanced legitimate penological goals" as Plaintiff was suspected of drinking in violation of the prison's rules. Id. at 5-6. In his

Opposition, Plaintiff maintains that his statement, "If you saw who was drinking, why don't you address that person instead of disrespecting everybody," is protected speech. Pl.'s Opp at 2. Because he was

punished as a result of that speech, Plaintiff argues that his First Amendment rights were violated. Id.

The First Amendment guarantees that "Congress shall make no law... abridging the freedom of speech..." U.S. Const. Amend. 1. It is well

settled that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, "[l]awful

incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations 6
09cv0413-WQH (BLM)

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

underlying our penal system." omitted). Accordingly, a

Id.

at 545-46 (internal citations First Amendment rights are

prisoner's

"necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987).

In order to state a cognizable First Amendment free speech claim, Plaintiff must plead that his speech was constitutionally protected, that Defendant's actions would chill an ordinary person from continuing in that activity, and that Defendant's actions were motivated by his constitutionally protected speech. Mendocino Environmental Center v. In his

Mendocino County, 192 F.3d 1283, 1300-1301 (9th Cir. 1999).

Complaint, Plaintiff does not allege that he engaged in protected speech nor does he allege that Defendant prohibited him from exercising his free speech rights. Plaintiff attempts to correct the first omission by claiming in his opposition that his statements were protected by the First Amendment. to augment the Pl.'s Opp at 2. complaint,1 the Even if that were a permissible way derogatory and challenging remarks

Plaintiff directed toward Defendant cannot properly be characterized as protected speech. The First Amendment protects a wide range of activity in the prison context, officials. including the right to file grievances against prison

Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

However, protests and complaints that involve a direct confrontation with prison officials, such as Plaintiff's confrontation with Defendant, enjoy
1

limited

constitutional

protection

because

such

behavior

may

A court "may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss," to find facts and allegations supporting the claim. Schneider, 151 F.3d at 1197 n.1 (emphasis in original). All of the required facts must be alleged in the complaint and the documents properly attached to it. Hal Roach Studios, 896 F.2d at 1555 n.19.

7

09cv0413-WQH (BLM)

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

present the danger of a disturbance.

See, e.g., Lockett v. Suardini,

526 F.3d 866, 874 (6th Cir. 2008) (prisoner's act of calling hearing officer a "foul and corrupted bitch" not protected speech); Smith v. Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008) (prisoner's "false and insubordinate remarks" not protected speech); Garrido v. Coughlin, 716 F.Supp.98, 99-101 (S.D.N.Y. 1989) ("verbal confrontation" of officers over their treatment of another inmate not protected conduct); Franklin v. State of Oregon, 563 F.Supp.1310, 1326 (D.Or. 1983) (First Amendment does not extend to "use of expletives" directed toward a guard), aff'd in part and rev'd in part, 795 F.2d 1221 (9th Cir. 1984); Pollard v. Baskerville, 481 F.Supp.1157, 1160 (E.D.Va. 1979) (accusation that guard brought in contraband not constitutionally protected speech); Riggs v. Miller, 480 F.Supp.799, 804 (E.D.Va. 1979) ("bickering, argumentative conversation" does not rise to the "lofty position of constitutionally protected speech"); Craig v. Franke, 478 F.Supp.19, 21 (E.D.Wis. 1979) (accusation that prison official was drunk not protected speech); Durkin v. Taylor, 444 F.Supp.879, 881-83 (E.D.Va. 1977) (statement that "I am tired of chickenshit rules" not protected speech). The California Code

of Regulations acknowledges this concern and explicitly prohibits such behavior: Inmates, parolees and employees will not openly display disrespect or contempt for others in any manner intended to or reasonably likely to disrupt orderly operations within the institutions or to incite or provoke violence. Cal. Code Regs., tit 15, § 3004(b). The Court finds this concern

especially acute where, as here, other inmates were present because prison officials have a strong interest in "preserving institutional order and discipline." Cir. 1994). Barnett v. Centoni, 31 F.3d 813, 815-16 (9th

Accordingly, Plaintiff's statements, as set forth in the 8
09cv0413-WQH (BLM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Complaint, do not constitute constitutionally protected speech and the Complaint fails to state a First Amendment free speech claim. Alternatively, and with liberal construction, Plaintiff's Complaint could be construed to assert a First Amendment claim for retaliation. Complaint at 3-4. Specifically, Plaintiff is asserting that Defendant

handcuffed him and removed him to the program office in response to Plaintiff's first statement and physically assaulted him in response to a subsequent statement. Id. Allegations of retaliation against a

prisoner's First Amendment right to freedom of speech may support a section 1983 claim. 1985). See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.

As the Ninth Circuit explained in Rhodes v. Robinson, 408 F.3d

559, 567-568 (9th Cir. 2005): Within the prison context, a viable First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.

17 Id. 18 To properly state a First Amendment retaliation claim, therefore,

19 Plaintiff must first plead facts showing that he engaged in protected 20 speech. Here, Plaintiff alleges that he was placed in handcuffs in

21 retaliation for his "protected" statement "If you saw who was drinking, 22 why don't you address that person instead of disrespecting everybody." 23 Complaint at 3; Pl.'s Opp at 2. 24 not amount to protected speech. As explained above, this statement does Moreover, even if Plaintiff's statement

25 was protected, he does not adequately plead a connection between the 26 protected statement and Defendant's actions. In other words, Plaintiff

27 does not allege that he was punished "because of" his protected statement 28 or that Defendant's conduct chilled the exercise of his constitutional 9
09cv0413-WQH (BLM)

1 rights.

Finally, Plaintiff fails to allege that Defendant's conduct did

2 not reasonably advance a legitimate correctional goal and, in fact, the 3 Complaint indicates that Defendant had a legitimate correctional reason 4 for disciplining Plaintiff as he was suspected of drinking alcohol in 5 violation of the prison's rules and regulations. 6 Complaint at 3.

Plaintiff also alleges that he was pulled to the ground and beat up While neither party provides

7 after he said, in Spanish, "Ya mamasela."

8 a translation of this term, the way it was used, as described by 9 Plaintiff in his Complaint (id.), indicates that it does not constitute 10 protected speech for the reasons explained above. In any event,

11 Plaintiff has failed to set forth sufficient facts in his Compliant to 12 establish that it did constitute protected speech. Additionally,

13 Plaintiff does not allege that Defendant's conduct chilled his First 14 Amendment rights, or that the conduct did not reasonably advance a 15 legitimate correctional goal.2 Rhodes, 403 F.3d at 569 ([A]llegations

16 that [an inmate's] First Amendment rights were chilled, though not 17 necessarily silenced, is enough to perfect [a] claim.); Pratt v. Rowland, 18 65 F.3d 802, 806 (9th Cir. 1995) (finding that the prisoner bears the 19 burden of pleading and proving absence of legitimate correctional goal 20 for the conduct of which he complains). Accordingly, Plaintiff fails to

21 adequately allege a constitutional claim for retaliation. 22 Because Plaintiff does not sufficiently allege a First Amendment

23 free speech or retaliation claim, the Court RECOMMENDS that Defendant's 24 Motion 25 26 27 28
Whether or not Defendant used excessive force in disciplining Plaintiff is a different question and one more appropriately analyzed under the Eighth Amendment. Indeed, based on the same set of facts, Plaintiff claims cruel and usual punishment in violation of the Eighth Amendment. Plaintiff may proceed with this claim as Defendant appears to concede that it was properly pled.
2

to

Dismiss

Count

One

of

Plaintiff's

Complaint

be

GRANTED.

10

09cv0413-WQH (BLM)

1 Plaintiff's

Complaint

contains

detailed

information

regarding

the

2 statements that were made by Plaintiff and none of them constitute 3 protected speech. Accordingly, any amendment would be futile and the Cahill

4 Court therefore RECOMMENDS that the dismissal be with prejudice.

5 v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (leave to 6 amend should not be granted where to do so would be futile). 7 8 CONCLUSION For the foregoing reasons, IT IS RECOMMENDED that the District Court

9 GRANT WITH PREJUDICE Defendant's Motion to Dismiss Count One. 10 IT IS HEREBY ORDERED that any written objections to this Report must December

11 be filed with the Court and served on all parties no later than 12 3, 2009.

The document should be captioned "Objections to Report and

13 Recommendation." 14 IT IS FURTHER ORDERED that any reply to the objections shall be

15 filed with the Court and served on all parties no later than December 23, 16 2009. The parties are advised that failure to file objections within the 17 specified time may waive the right to raise those objections on appeal 18 of the Court's order. 19 2007). 20 21 22 DATED: 23 24 25 26 27 28 11 BARBARA L. MAJOR United States Magistrate Judge November 12, 2009 IT IS SO ORDERED. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.

09cv0413-WQH (BLM)