Eusse, Jr. v. Vitela et al

Filing 41

ORDER ADOPTING 34 REPORT AND RECOMMENDATION ; Overruling Objections; granting 26 Motion to Dismiss Portions of the Second Amended Complaint. Signed by Judge Roger T. Benitez on 3/9/2015.(All non-registered users served via U.S. Mail Service)(sjt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JAMES EUSSE, JR., 11 CASE NO. 13CV916 BEN (NLS) Plaintiff, 12 (1) ADOPTING REPORT AND RECOMMENDATION; vs. 13 (2) OVERRULING OBJECTIONS; AND 14 15 16 ORDER: MARCO VITELA, et al., Defendants. 17 (3) GRANTING MOTION TO DISMISS PORTIONS OF THE SECOND AMENDED COMPLAINT [Docket Nos. 26, 34] 18 19 20 On August 8, 2014, Defendants E. Duarte, M. Carpio, R. Nelson, Jr., G. Janda, 21 M. Whitman, and M. Vitela filed a Motion to Dismiss portions of Plaintiff James Eusse, 22 Jr.’s Second Amended Complaint (“SAC”). (Docket No. 26.) On November 17, 2014, 23 Plaintiff filed an Opposition to the Motion. (Docket No. 33.) On December 23, 2014, 24 Magistrate Judge Nita L. Stormes issued a Report and Recommendation (“R&R”) 25 recommending the Court grant Defendants’ Motion. (Docket No. 34.) Plaintiff filed 26 Objections to the R&R on February 9, 2015. (Docket No. 37.) Defendants did not file 27 a Reply. 28 /// -1- 13cv916 1 A district judge “may accept, reject, or modify the recommended disposition” of 2 a magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. 3 § 636(b)(1). “The district judge must determine de novo any part of the [report and 4 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). This 5 Court has carefully reviewed the R&R, Plaintiff’s Objections, and the remainder of the 6 record in this matter and ADOPTS the R&R over Plaintiff’s Objections. The Court 7 will not restate or address the R&R except to discuss Plaintiff’s Objections and to the 8 extent any of Plaintiff’s Objections are not specifically addressed below, the Objections 9 are overruled. 10 11 BACKGROUND The Court has reviewed and adopts the Report and Recommendation’s recitation 12 of the facts alleged in Plaintiff’s SAC. Briefly, Plaintiff alleges that his constitutional 13 rights were violated when he was retained in administrative segregation for a lengthy 14 period, a total of 580 days, as a result of Defendants’ false allegation that he was in 15 possession of a weapon. Plaintiff alleges this conduct was in retaliation for his filing 16 of grievances. Plaintiff’s Objections concerning the facts are addressed below, as 17 relevant to Plaintiff’s substantive arguments concerning his claims. 18 19 DISCUSSION “[A] complaint must contain sufficient factual matter, accepted as true, to state 20 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 21 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test 22 the sufficiency of this required showing. N.M. State Inv. Council v. Ernst & Young 23 LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). “A claim is facially plausible ‘when the 24 plaintiff pleads factual content that allows the court to draw the reasonable inference 25 that the defendant is liable for the misconduct alleged.’” Zixiang Li v. Kerry, 710 F.3d 26 995, 999 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). As the R&R accurately 27 notes, a pleading “filed pro se is ‘to be liberally construed’ and ‘a pro se complaint, 28 however inartfully pleaded, must be held to less stringent standards than formal -2- 13cv916 1 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 2 Plaintiff asserts claims for violation of the First, Eighth, and Fourteenth 3 Amendments and has submitted Objections as to each claim. Defendants do not move 4 to dismiss all claims. Rather, Defendants move to dismiss Plaintiff’s Eighth and 5 Fourteenth Amendment claims as to all Defendants and his First Amendment retaliation 6 claim as to Defendants Nelson, Janda, Duarte, and Carpio. 7 I. First Amendment Retaliation 8 Plaintiff objects to the dismissal of his First Amendment retaliation claim as to 9 Defendants Nelson, Janda, Duarte, and Carpio. The R&R recommends dismissal of 10 each Defendant because Plaintiff has failed to allege any personal participation in 11 retaliation by these Defendants.1 12 As to Defendant Nelson, Plaintiff asserts in his Objections that Defendant Nelson 13 should be responsible for Defendant Vitela planting a weapon on Plaintiff because 14 Defendant Vitela previously worked for Defendant Nelson, Defendant Nelson ordered 15 Plaintiff’s transport for an interview, Defendant Vitela followed Defendant Nelson’s 16 orders, and Defendant Carpio said Defendant Nelson had it out for Plaintiff. It appears 17 that Plaintiff is trying to impute the conduct of Defendant Vitela to Defendant Nelson 18 based on his supervision of and association with him, now and in the past, and 19 Defendant Carpio’s comment that Defendant Nelson had it out for Plaintiff. However, 20 as the R&R notes, “a supervisor is only liable for constitutional violations of his 21 subordinates if the supervisor participated in or directed the violations, or knew of the 22 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 23 Cir. 1989). Assuming Defendant Vitela retaliated against Plaintiff by planting a 24 weapon on him because of Plaintiff’s filing of grievances, Plaintiff has still not stated 25 a plausible claim against Defendant Nelson. Plaintiff has not alleged facts from which 26 27 1 The R&R references dismissal of Defendant Vitela rather than Defendant Carpio. (R&R 5:20-21.) That this is a scrivener’s error is clear from the R&R’s 28 acknowledgment on the prior page in a footnote that Defendants are not seeking to dismiss the claim as to Defendant Vitela. -3- 13cv916 1 the Court can infer that Defendant Nelson participated in, directed, or failed to act to 2 prevent retaliation against Plaintiff for exercising his First Amendment rights. 3 As to Defendant Janda, Plaintiff asserts in his Objections that Defendant Janda 4 should be responsible for Defendant Whitmans’s retaliation against Plaintiff. Plaintiff 5 asserts that as chairperson at a hearing, Defendant Janda should have prevented a verbal 6 comment by Defendant Whitman. Plaintiff asserts that he presented three other inmates 7 “128-G’s” with shorter sentences in administrative segregation than Plaintiff received 8 for a similar offenses. Plaintiff alleges Defendant Whitman threatened to let those other 9 inmates know that Plaintiff’s presentation of their “128-G’s” could increase those 10 inmates’ time. As the R&R notes, Plaintiff has not alleged any personal retaliation by 11 Defendant Janda against Plaintiff. Additionally, assuming that Defendant Whitman’s 12 comment constitutes retaliation, Plaintiff has not alleged facts from which the Court 13 could infer Defendant Janda directed or was in a position to direct, or could have 14 otherwise intervened to stop Defendant Whitman from making the comment. On the 15 contrary, Plaintiff asserts in his Objections that the comment was made by Defendant 16 Whitman after the hearing ended when Plaintiff was leaving the room. 17 As to Defendant Duarte, Plaintiff asserts in his Objections that the credibility of 18 Defendant Duarte’s testimony at Plaintiff’s trial for possession of a weapon was 19 undermined. Plaintiff alleges that Defendant Duarte testified that he completed a “cell 20 search/property confiscation slip.” But, when Plaintiff’s counsel pointed out that it 21 contained different handwriting on different parts of the slip, Defendant Duarte 22 admitted he did not complete the entire slip. These allegations do not state a plausible 23 claim for retaliation. 24 As to Defendant Carpio, Plaintiff asserts in his Objections that Defendant Carpio 25 should have noticed a discrepancy in the 114-D (“lock-up order”), indicating the 26 weapon was found on Plaintiff, and the 115 (“Rule Violation Report”), indicating the 27 weapon was found on the floor of the cell, and investigated the discrepancy. Plaintiff 28 seems to be arguing that Defendant Carpio is liable for Defendant Vitela falsely -4- 13cv916 1 accusing him of possession of a weapon because Defendant Carpio, as a supervisor, 2 should have noticed and investigated a discrepancy between these forms. Failing to 3 notice a discrepancy between forms does not constitute the direction of retaliation or 4 failing to prevent known retaliation. 5 II. Eighth Amendment 6 In his Objections, Plaintiff argues the same points noted above as to each 7 Defendant discussed above. Those assertions are no more persuasive here. The Court 8 could not infer from these facts that any of the above Defendants — Nelson, Duarte, 9 Carpio, or Janda — personally participated in, directed others to engage in, or knew of 10 the imposition of cruel and unusual punishment or failed to stop it. 11 As to Defendant Vitela, Plaintiff argues that Defendant Vitela planted the weapon 12 that caused him to stay in administrative segregation and observed the impact of a 13 lengthy stay in administrative segregation on Plaintiff. As to Defendant Whitman, 14 Plaintiff argues that Defendant Whitman gave him a lengthier stay in administrative 15 segregation than other inmates accused of similar offenses and threatened to give other 16 inmates lengthier stays when Plaintiff raised this issue by reference to those inmates’ 17 lesser sentences. 18 “The Constitution does not mandate comfortable prisons, but neither does it 19 permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citation 20 omitted). “[P]rison officials must ensure that inmates receive adequate food, clothing, 21 shelter, and medical care, and must take reasonable measures to guarantee the safety of 22 the inmates.” Id. Conditions may be “restrictive and even harsh.” Rhodes v. Chapman, 23 452 U.S. 337, 347 (1981). It is the “unnecessary and wanton infliction of pain [that] 24 constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” 25 Whitley v. Albers, 475 U.S. 312, 319 (1986). 26 The Court agrees that alleged verbal threats by Defendants do no state a plausible 27 claim of cruel and unusual punishment. The Court also agrees that the conditions 28 Plaintiff claims to have been subjected to in administrative segregation, while more -5- 13cv916 1 restrictive than general population, did not deprive him of adequate food, clothing, 2 shelter, medical care, jeopardize his safety, or involve the unnecessary or wanton 3 infliction of pain. 4 Plaintiff seems to argue that his conditions of confinement in administrative 5 segregation violated the Eighth Amendment by comparison to the conditions of 6 confinement in general population, but what the Court must assess is whether the 7 conditions alleged constitute cruel and unusual punishment. Plaintiff alleges he was 8 given two hours of yard time three times a week, allowed showers three times a week, 9 given only karate shoes, allowed one-hour non-contact visits, no phone access, limited 10 law library access, shackled when outside his cell, limited access to outside packages, 11 not allowed access all of his property, and not allowed access to educational programs. 12 These conditions might be characterized as uncomfortable as compared to the 13 alternative, but they do not state a plausible claim of cruel and unusual punishment. 14 III. Fourteenth Amendment 15 A. 16 The R&R concludes that Plaintiff has not alleged an Equal Protection claim for Equal Protection 17 relief. He has not alleged he was treated differently because he was part of a protected 18 class or that Defendants’ conduct lacked any rational basis. Plaintiff objects, reiterating 19 the same allegations noted above as to each Defendant and claims he is a class of one. 20 The R&R acknowledges the class-of-one basis for Plaintiff’s equal protection claim. 21 When the class-of-one theory serves as the basis for an equal protection claim, “the 22 plaintiff must establish that [Defendants] intentionally, and without rational basis, 23 treated the plaintiff differently from others similarly situated.” N. Pacifica LLC v. City 24 of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). In concluding Plaintiff has not alleged 25 Defendants’ conduct lacked any rational basis, the R&R is applying the class-of-one 26 basis for equal protection. 27 28 -6- 13cv916 1 Assuming the class-of-one theory applies in the prison context,2 Plaintiff still fails 2 to state a claim. “Tricking” Plaintiff into getting into a van transport for an interview 3 is not a violation of Equal Protection, particularly when Plaintiff says he was returned 4 him to his cell when he objected to being interviewed. Similarly, imposition of a 5 different term of administrative segregation for different inmates accused of similar 6 offenses does not alone state a plausible Equal Protection claim. See Engquist, 553 7 U.S. at 603 (deferential treatment raises an Equal Protection concern when applicable 8 standard is uniform and lacking individualized or subjective evaluation). 9 10 B. Due Process The R&R concludes that allegations of a 580-day stay in administrative 11 segregation may constitute a deprivation of a liberty interest at the pleading stage, but 12 that Plaintiff received due process. “To state a procedural due process claim, the Class 13 must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 14 deprivation of the interest by the government; and (3) lack of process.’” Wright v. 15 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (emphasis added) (quoting Portman v. 16 Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 17 In his Objections, Plaintiff reiterates his complaints about the disciplinary process 18 that resulted in administrative segregation, including that it was based on a false report 19 that he was in possession of a weapon. However, Plaintiff’s Objections also describe 20 at length the process he received, i.e., the hearing in which he unsuccessfully disputed 21 the length of time he should be confined to administrative segregation, and at which he 22 asserted he was not in possession of a weapon. He describes how, at his trial, his 23 2 The class of one basis for an equal protection claims is limited. Engquist v. Or. 24 Dep’t of Agric., 553 U.S. 591, 603 (2008). It does not extend to actions “which by their nature involve discretionary decisionmaking based on a vast array of subjective, 25 individualized assessments” because “treating like individuals differently is an accepted consequence of the discretion granted.” Id.; see also Dawson v. Norwood, No. 26 06cv914, 2010 WL 2232355, at *2 (W.D. Mich. 2010) (collecting cases rejecting “class-of-one theories in the context of prison officials making discretionary decisions 27 concerning inmates”). In Engquist, the court noted that the class-of-one theory arose in the context of government regulation of property, a situation in which there was “a 28 clear standard against which departures, even for a single plaintiff, could readily be assessed.” 553 U.S. at 602. -7- 13cv916 1 attorney undermined the credibility of Defendants’ testimony against Plaintiff and that 2 Plaintiff was ultimately found not guilty of possession of a weapon. From his 3 description, it is evident that he knew of the charges against him because he brought 4 documentation of the length of other inmates’ sentences for similar offenses to his 5 hearing. Plaintiff also describes how he had an opportunity at trial to cross examine 6 (impeach credibility of Defendants) and call witnesses and present documentary 7 evidence, including the cell search form with different handwriting. This is sufficient 8 to satisfy due process. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974) (noting 9 necessity for notice and an opportunity to present evidence in defense). In view of 10 Plaintiff’s own description of events, Plaintiff has not stated a plausible claim of a 11 denial of due process. 12 IV. Leave to Amend 13 “Although a district court should grant the plaintiff leave to amend if the 14 complaint can possibly be cured by additional factual allegations, dismissal without 15 leave to amend is proper if it is clear that the complaint could not be saved by 16 amendment.” Zixiang Li, 710 F.3d at 999 (internal citation omitted). A “district court’s 17 discretion over amendments is especially broad where the court has already given a 18 plaintiff one or more opportunities to amend his complaint.” DCD Programs, Ltd. v. 19 Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987). This is the third complaint Plaintiff 20 has filed in this action and the second motion to dismiss filed by Defendants. Plaintiff 21 has had multiple opportunities to cure the deficiencies of his complaints. Additionally, 22 it is evident from Plaintiff’s SAC, his Opposition to the Motion to Dismiss, and his 23 Objections that he has included every possible factual allegation related to this action. 24 It is clear to the Court that the claims dismissed here cannot be saved by amendment. 25 Accordingly, the Court denies leave to amend. 26 27 CONCLUSION Plaintiff’s First Amendment retaliation claim is DISMISSED as to 28 Defendants Nelson, Janda, Duarte, and Carpio. Plaintiff’s Eighth Amendment and -8- 13cv916 1 Fourteenth Amendment claims are DISMISSED in their entirety. 2 The case shall proceed as to Plaintiff’s First Amendment retaliation claim 3 against Defendants Vitela and Whitman. Defendants shall file an Answer on or 4 before March 30, 2015. 5 IT IS SO ORDERED. 6 7 DATED: March 9, 2015 8 9 Hon. Roger T. Benitez United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 13cv916

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