Johnson v. Gains et al

Filing 15

ORDER Denying Motion to Appoint Counsel and Dismissing Second Amended Complaint for Failure to State a Claim: Plaintiff is granted thirty (30) days leave from the date this Order is "Filed" in which to file a Third Amended Complaint which cures all the deficiencies of pleading noted in this order. Signed by Judge Larry Alan Burns on 11/9/09. (Blank Third Amended 1983 Complaint sent with copy of Order)(pdc) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 vs. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY O n June 8, 2009, Anthony Wayne Johnson, Jr. ("Plaintiff"), a state prisoner currently inca rce rated at Salinas Valley State Prison located in Soledad, California, and proceeding pro s e , submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. Plaintiff's original C o m p la in t named forty three (43) defendants and attached more than a thousand pages as E x h ib its . D e f e n d a n ts . M . GAINS, et al., A N T H O N Y WAYNE JOHNSON, Jr., C D C R #F-58411, P la in tif f , C iv il No. O R D E R: (1) DENYING MOTION TO A P P O I N T COUNSEL PURSUANT T O 28 U.S.C. § 1915(e)(1) [Doc. No. 13]; and (2 ) DISMISSING SECOND A M E N D E D COMPLAINT W I T H O U T PREJUDICE FOR F A IL IN G TO STATE A CLAIM PURSUANT TO 2 8 U.S.C. §§ 1915(e)(2)(b) & 1915A(b) [D o c . No. 14] 0 9 c v 1 3 1 2 LAB (POR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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O n August 18, 2009, the Court granted Plaintiff's Motion to Proceed in forma p a u p e ris ("IFP") but sua sponte dismissed Plaintiff's Complaint for failing to state a claim upon w h ic h relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). See Aug. 18, 2 0 0 9 Order at 8-9. Plaintiff was granted leave to amend but he was also cautioned that he must c o m p ly with Rule 8 of the Federal Rules of Civil Procedure. Id. at 4. Plaintiff was informed th a t any Defendants not named and claims not re-alleged in the First Amended Complaint would b e deemed waived. Id. at 9 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Plaintiff filed his First Amended Complaint ("FAC") on September 11, 2009 [Doc. No. 8 ]. The Court found that Plaintiff failed to heed the Court's warning with respect to Rule 8 as P la in tif f 's First Amended Complaint was rambling and contained, once again, over a thousand p a g e s of exhibits. In addition, Plaintiff named thirty nine (39) Defendants and his FAC was m o re than sixty pages long. Despite the numerous deficiencies, the Court granted Plaintiff leave to file a Second Amended Complaint. On October 28, 2009, Plaintiff filed his Second Amended C o m p lain t ("SAC") [Doc. No. 14], along with a Motion to Appoint Counsel [Doc. No. 13]. II. M OTION FOR APPOINTMENT OF COUNSEL [Doc. No. 13] P la in tif f requests the appointment of counsel to assist him in prosecuting this civil action. T h e Constitution provides no right to appointment of counsel in a civil case, however, unless an in d ig e n t litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social S e rv ic e s, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are g ra n ted discretion to appoint counsel for indigent persons. This discretion may be exercised only u n d e r "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A f in d in g of exceptional circumstances requires an evaluation of both the `likelihood of success o n the merits and the ability of the plaintiff to articulate his claims pro se in light of the c o m p le x ity of the legal issues involved.' Neither of these issues is dispositive and both must be v ie w e d together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1 3 3 1 (9th Cir. 1986)).

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T h e Court denies Plaintiff's request without prejudice, as neither the interests of justice n o r exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 8 2 7 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. I I I. S UA SPONTE SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) A s the Court stated in its previous Orders, notwithstanding payment of any filing fee or p o rtio n thereof, the Prison Litigation Reform Act ("PLRA") requires courts to review complaints f ile d by prisoners against officers or employees of governmental entities and dismiss those or a n y portion of those found frivolous, malicious, failing to state a claim upon which relief may b e granted, or seeking monetary relief from a defendant immune from such relief. See 28 U.S.C. § § 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). P rio r to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only f riv o lo u s and malicious claims. Lopez, 203 F.3d at 1126, 1130. However 28 U.S.C.

§ § 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner's suit make and rule o n its own motion to dismiss before directing that the complaint be served by the U.S. Marshal p u rs u a n t to FED. R. CIV. P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); Barren v. H a r r in g to n , 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to a m e n d , however, unless it determines that "the pleading could not possibly be cured by the a lle g a tio n of other facts" and if it appears "at all possible that the plaintiff can correct the d e f ec t." Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1 9 9 5 ); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)). "[W]hen determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) " p a ra lle ls the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal c o n stru c tio n is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, -3-

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1 2 6 1 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that w e re not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9 th Cir. 1982). As currently pleaded, the Court finds that Plaintiff's Second Amended Complaint fails to state a cognizable claim under 42 U.S.C. § 1983. Section 1983 imposes two essential proof re q u ire m e n ts upon a claimant: (1) that a person acting under color of state law committed the c o n d u c t at issue, and (2) that the conduct deprived the claimant of some right, privilege, or im m u n ity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; P a r r a tt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 4 7 4 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). A. E q u a l Protection claims

P lain tiff alleges that he was discriminated against based on his race in violation of his rig h t to equal protection under the law. The "Equal Protection Clause of the Fourteenth A m e n d m e n t commands that no State shall `deny to any person within its jurisdiction the equal p ro tec tio n of the laws,' which is essentially a direction that all persons similarly situated should b e treated alike." City of Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432, 439 (1985). In order to state a claim under § 1983 alleging violations of the equal protection clause of the F o u r te e n th Amendment, Plaintiff must allege facts which demonstrate that he is a member of a protected class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (indigents); see also City of C le b u r n e v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) (listing suspect classes). In this m a tte r, Plaintiff has sufficiently plead that he is a member of a suspect class but he has failed to plead adequate facts to demonstrate that Defendants acted with an intent or purpose to d is c rim in a te against him based upon his membership in a protected class. See Barren v. H a r r in g to n , 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). On December 23, 2007, Plaintiff alleges that he was "released from his assigned prison c e ll for his morning shower" by Defendant Holmstrom. (SAC at 17.) Plaintiff entered the s h o w e r. Plaintiff claims that Defendant Gains, who was standing near the shower, waited for P la in tif f to begin showering then Gains "instructed Holmstrom to turn off the water." (Id.) -4-

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G a in s told Plaintiff to exit the shower and go to the "A shower" which Plaintiff claims was the le a s t preferred shower by inmates. (Id.) Plaintiff alleges that Defendant Gains knew that the "B s h o w e r " was the preferred shower and on that day, Plaintiff was one of the last inmates to use th e shower. (Id.) Plaintiff claims that there was "no reason other than a discriminatory one for p l a i n t if f to have to move" to a different shower. (Id. at 18.) When Plaintiff asked Defendant G a in s why he had to move to a different shower, Defendant Gains responded "because I said s o ." (Id.) Plaintiff then asked "oh, because I'm black?" to which Plaintiff alleges Defendant G a in s responded by saying "you're damn skippy." (Id.) T h e se claims, once again, are insufficient to find that the mere fact Plaintiff was told to s w it c h to a different shower was based in racial discrimination. "[A] complaint must contain su f f icie n t factual matter, accepted as true, to `state a claim for relief that is plausible on its f a ce .'" Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937 (2009) (quoting Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads f a c tu a l content that allows the court to draw the reasonable inference that the defendant is liable f o r the misconduct alleged. Id. Here, the mere fact that the Defendant told Plaintiff he had to u se a different shower does not state a "plausible" claim that he was being discriminated against. M o re o v e r, while Plaintiff alleges that the reason he was told to move to a different shower was b e c a u s e of his race, yet he also claims that he was one of the last inmates to use that shower. He d o e s not allege that any of the other inmates were denied use of the shower based on race. P la in tif f must allege facts "susceptible to an inference that `defendants acted with an intent or p u rp o s e to discriminate against the plaintiff based upon membership in a protected class.'" Byrd v. Maricopa County Sheriff's Dep't, 565 F.3d 1205, 1212 (9th Cir. 2009) (quoting Barren, 152 F .3 d at 1194)). T h u s , the Court finds that Plaintiff's allegations are insufficient to prove invidious d is c rim in ato ry intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 4 2 9 U.S. 252, 265 (1977). Plaintiff's Fourteenth Amendment equal protection claims are d ism iss e d for failing to state a claim upon which § 1983 relief can be granted without leave to amend. -5-

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B.

E x c e s s iv e Force Claims

P la in tif f claims Defendant Gains ordered him to leave the "B-lower section" shower but P la in tif f refused to do so until Defendant Gains brought a higher ranking officer to the shower to discuss the issue. (See SAC at 18.) Defendant Gains refused to do so and instead left Plaintiff lo c k e d in the shower. (Id.) Defendants Carpio, Smith, Garza, Rascon and Palomera later came a n d ordered Plaintiff to leave the shower area. (Id.) Plaintiff alleged he wanted to explain the situ a tio n to Carpio but Carpio told Plaintiff that he would not be showering and to return to his c e ll. (Id. at 19.) Plaintiff refused and asked to speak to a higher ranking officer. (Id.) At that time Plaintiff claims that Defendants Carpio, Smith, Garza, Rascon and Palomera " s te p p e d away from the shower, huddled up and premeditated the murder they were about to a tte m p t." (Id.) Plaintiff also alleges that Defendant Carpio told him several times to permit the o f f ic e rs to handcuff Plaintiff and remove him from the shower but he continued to refuse. (Id. a t 19-20.) After he refused to leave to the shower, Plaintiff alleges that Defendants used pepper s p ra y in an amount that "could have killed Plaintiff." (Id. at 20.) When an inmate claims that prison officials violated his Eighth Amendment rights by u sing excessive force, the relevant inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. M c M illia n , 503 U.S. 1, 7 (1992). An Eighth Amendment violation occurs only when an inmate is subjected to the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 3 1 9 (1986). To determine whether Plaintiff has satisfied the malicious and sadistic standard, the C o u rt examines the following five factors: (1) the extent of the injury suffered; (2) the need for th e application of force; (3) the relationship between that need and the amount of force used; (4) th e threat reasonably perceived by Defendants; and (5) any efforts made to temper the severity o f a forceful response. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321. H e re , Plaintiff's facts fail to show that the actions of the Defendants rises to the level of " m a lic io u s and sadistic." Id. Plaintiff admits that he refused to comply with the orders to leave th e shower for several hours. No other force is alleged to be used against Plaintiff other than P la in t if f ' s allegations that they used pepper spray. The facts, even taken in the light most -6-

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f a v o ra b le to Plaintiff, demonstrate that the pepper spray was used "in a good faith effort to re sto re discipline and order and not maliciously and sadistically for the very purpose of causing h a r m . " Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). Thus, Plaintiff's Eighth A m e n d m e n t excessive force claims are dismissed for failing to state a claim upon which § 1983 re lie f can be granted. C. F o u r t e e n t h Amendment Due Process

O n c e again, Plaintiff claims that his due process rights were violated when prison o f f ic ia ls failed to properly process his administrative grievances. The Fourteenth Amendment to the United States Constitution provides that: "[n]o state shall . . . deprive any person of life, lib e rty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. "The

re q u ire m e n ts of procedural due process apply only to the deprivation of interests encompassed b y the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 4 0 8 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty or p ro p e rty interests sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 2 2 3 -2 7 (1976). Thus, to state a procedural due process claim, Plaintiff must allege: "(1) a lib e rty or property interest protected by the Constitution; (2) a deprivation of the interest by the g o v e rn m e n t; [and] (3) lack of process." Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). T o the extent Plaintiff challenges the procedural adequacy of CDCR inmate grievance p ro c e d u r e s, his Second Amended Complaint again fails to state a due process claim. This is b e c au s e the Ninth Circuit has held that prisoners have no protected property interest in an inmate g r i e v a n c e procedure arising directly from the Due Process Clause. See Mann v. Adams, 855 F .2 d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment c re a tes "no legitimate claim of entitlement to a [prison] grievance procedure"); accord Adams v . Rice, 40 F.3d 72, 75 (4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) In addition, Plaintiff has failed to plead facts sufficient to show that any named prison o f f ic ia l deprived him of a protected liberty interest by allegedly failing to respond to his prison g rie v a n ce s in a satisfactory manner. While a liberty interest can arise from state law or prison -7-

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re g u l a t i o n s , Meachum, 427 U.S. at 223-27, due process protections are implicated only if P la in tif f alleges facts to show that Defendants: (1) restrained his freedom in a manner not e x p e c ted from his sentence, and (2) "impose[d] atypical and significant hardship on [him] in re la tio n to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); N e a l v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff alleges no facts to demonstrate h o w the allegedly inadequate review and consideration of his inmate grievances amounted to a re stra in t on his freedom not contemplated by his original sentence or how they resulted in an " a typ ic a l" and "significant hardship." Sandin, 515 U.S. at 483-84. Accordingly, Plaintiff's F o u r te e n th Amendment due process claims are dismissed for failing to state a claim upon which § 1983 relief can be granted without leave to amend. D. R e ta lia tio n Claims

P la in tif f alleges that he was placed in Administrative Segregation "Ad-Seg" from D e c em b e r 23, 2007 to March 2, 2009 following the shower pepper spray incident in retaliation f o r "invoking his protection Federal Constitutional rights on December 23, 2007." (SAC at 21.) P r i s o n officials may not retaliate against prisoners for filing litigation or administrative g rie v a n c e s . See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). In order to prevail on a claim of retaliation, Plaintiff must be able to prove the following five factors: "(1) An assertion th a t a state actor took some adverse action against [Plaintiff]; (2) because of (3) [Plaintiff's] p ro te c te d conduct, and that such action (4) chilled [Plaintiff's] exercise of his First Amendment rig h ts , and (5) the action did not reasonably advance a legitimate correctional goal."Rhodes v. R o b in s o n , 408 F.3d 559, 567-568 (9th Cir. 2005). (citing Resnick v. Hayes, 213 F.3d 443, 449 (9 th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam)). However, it is far from clear how Plaintiff's refusal to leave the shower on December 23, 2007 c o u ld be considered "protected conduct." Id. Accordingly, Plaintiff's First Amendment re ta lia tio n claims are dismissed for failing to state a claim upon which § 1983 relief can be g r a n te d . T h e Court, therefore, must dismiss Plaintiff's Second Amended Complaint for failing to s ta te a claim upon which relief may be granted. -8-

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I I I. C ONCLUSION AND ORDER G o o d cause appearing, IT IS HEREBY ORDERED: 1. 2. P la in t if f ' s Motion for Appointment of Counsel [Doc. No. 13] is DENIED. P la in t if f ' s Second Amended Complaint is DISMISSED for failing to state a claim

u p o n which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However, Plaintiff is GRANTED thirty (30) days leave from the date this Order is "Filed" in w h ic h to file a Third Amended Complaint which cures all the deficiencies of pleading noted a b o v e . Plaintiff's Amended Complaint must be complete in itself without reference to the s u p e rs e d e d pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re -a lle g e d in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 8 1 4 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended Complaint fails to state a c la im upon which relief may be granted, it may be dismissed without further leave to amend a n d may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 8 4 F.3d 1172, 1177-79 (9th Cir. 1996). 3. T h e Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

D A T E D : November 9, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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