1 NOT FOR PUBLICATION 2

3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 Stephen DRAGASITS, Case No.: 24-cv-1257-AGS-SBC

6 Plaintiff,

ORDER:

7 vs. (1) DISMISSING ALL DEFENDANTS 8 Correctional Officer ARCHULETA, et al.,

EXCEPT ARCHULETA, MASSIA,

9 Defendants. GARCIA, AND QUIJADA; AND

10 (2) DIRECTING U.S. MARSHAL TO 11 EFFECT SERVICE OF AMENDED

COMPLAINT

12 13 14 Plaintiff Stephen Dragasits is an unrepresented state prisoner proceeding in forma 15 pauperis and suing defendants for civil rights violations under 42 U.S.C. § 1983. (ECF 1.) 16 His initial complaint plausibly alleged an excessive-force claim against defendants 17 Archuleta and Massia but failed to state a claim against the remaining defendants. (See 18 ECF 4, at 4–5.) Dragasits was given the option to amend. (Id. at 5–6.) In the interim, the 19 case was consolidated with another of his civil actions arising from disciplinary 20 proceedings based on the events alleged in this action. (ECF 10.) Dragasits has now filed 21 a consolidated amended complaint. (ECF 14.) 22 SCREENING 23 The Court must screen and dismiss a complaint, or any portion of it, that is frivolous, 24 malicious, fails to state a claim, or seeks damages from immune defendants. See Lopez v. 25 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 26 § 1915(e)(2) screening); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 27 (discussing 28 U.S.C. § 1915A(b) screening). “The standard for determining whether a 28 plaintiff has failed to state a claim upon which relief can be granted under 1 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for 2 failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also 3 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (same for § 1915A screening). 4 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 5 to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 6 (2009) (cleaned up). 7 A. Consolidated Amended Complaint’s Allegations 8 On November 24, 2018, Dragasits cut to the front of the chow line wearing an 9 Americans with Disabilities Act vest and using a walker when he was told by defendant 10 correctional officer Archuleta to take a 300-yard detour to the back of the line. (ECF 14, 11 at 10, 15.) Dragasits instead sat down on his walker, removed his shoe, showed Archuleta 12 the infected stitches in his foot, and explained he was suffering pain and that his vest and 13 walker gave him front-of-line privileges. (Id. at 10–11, 15–16.) Archuleta repeated that he 14 had to walk around and then took Dragasits’s identification card. (Id. at 11, 16.) Dragasits 15 alleges that correctional officers are trained to allow ADA inmates using walkers to have 16 front-of-line privileges at chow. (Id. at 8.) 17 Dragasits began to explain the situation to another correctional officer, defendant 18 Quijada, while standing next to his walker and putting his shoes and socks back on, when 19 Archuleta tripped Dragasits from behind, making him hit his back and head on rough 20 asphalt. (Id. at 11, 17.) Quijada was facing Dragasits, saw what was happening behind him, 21 and extended his arms as if to try to catch Dragasits, while defendant correctional officers 22 Saliewsky and John Does 1–5 were standing with their backs to the wall. (Id. at 11, 17–18, 23 26.) Archuleta then climbed on Dragasits’s back preventing him from breathing and called 24 in a code. (Id. at 11, 18.) Thereafter, defendant correctional officer Massia punched and 25 kicked Dragasits in his left rib cage causing a compound rib fracture. (Id. at 11, 19.) When 26 Dragasits cried for help, defendant correctional officer Garcia punched and kicked him in 27 his side, kicked him in the head, and ground his face into the asphalt. (Id.) Defendant 28 correctional officer Scharr approached and said “ok, get off him.” (Id. at 12, 18.) 1 After this altercation, Archuleta purportedly issued a rules violation report with a 2 false narrative, and Quijada later denied seeing anything in an attempt to cover up the 3 attack. (Id. at 11–12, 17–18.) Defendants’ supervisor Ortiz and warden Stewart are alleged 4 to be liable as supervisors. (Id. at 21, 28–29.) 5 At the rules-violation hearing, Dragasits was found guilty of disobeying an order by 6 defendant hearing officer Ferrel, who allegedly refused to read Dragasits’s two-page 7 written description of the events or include it in the record. (Id. at 14, 22–23.) Defendant 8 investigating officer Avila denied Dragasits’s requests for Archuleta’s presence at the 9 hearing, to announce at chow that Dragasits was looking for witnesses, and to introduce 10 his medical records. (Id. at 23, 34.) Defendant chief disciplinary officer Juarez failed to 11 overturn the guilty finding. (Id. at 36.) Defendant retired warden Covello ordered a 12 rehearing due to Archuleta’s absence at the hearing, but did not investigate “all of the other 13 complaints,” and defendants Scharr, D-yard captain Benyard, and supervisors Godinez and 14 Luna approved the reissued rules violation report. (Id. at 24–25, 27–28, 32, 34.) Dragasits 15 was transferred to Kern Valley State Prison where defendant senior hearing officer Nuckles 16 told him that Archuleta could not attend the rehearing because she was on mental health 17 leave but failed to note that in the rehearing record or include his medical records. (Id. 18 at 14, 33, 35.) Defendant chief disciplinary officer Swaim approved the guilty finding on 19 the reissued violation. (Id. at 35.) 20 Dragasits alleges that defendant appeals coordinators and examiners Calvert, Frijas 21 Gonzalez, and Allen, along with hiring authorities John Does 6–8, refused to properly 22 process his 602 inmate appeals necessary to exhaust his administrative remedies. (Id. 23 at 30–31, 35.) He also claims that defendants California Department of Corrections and 24 Rehabilitation and CDCR secretary Macomber are liable for hiring and failing to train or 25 discipline the defendants. (Id. at 2, 37–39.) He claims violations of his First Amendment 26 right to free speech and access to the courts, his Fourteenth Amendment right to due 27 process, his Eighth Amendment right to be free from cruel and unusual punishment, his 28 rights under the ADA, intentional infliction of emotional distress, and assault and battery. 1 B. Eighth Amendment Claims 2 The Eighth Amendment forbids prison officials from engaging in the “unnecessary 3 and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986); Farmer v. 4 Brennan, 511 U.S. 825, 832 (1994) (noting that the Eighth Amendment “places restraints 5 on prison officials, who may not, for example, use excessive physical force against 6 prisoners”). “[W]henever prison officials stand accused of using excessive physical force 7 in violation of the [Eighth Amendment], the core judicial inquiry is that set out in Whitley: 8 whether force was applied in a good-faith effort to maintain or restore discipline, or 9 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). 10 Dragasits’s allegations are sufficient to survive the “low threshold” of screening with 11 respect to an Eighth Amendment claim against defendants Archuleta, Massia, and Garcia— 12 who are alleged to have attacked and beaten him without cause. See Wilhelm, 680 F.3d 13 at 1123. Accordingly, Dragasits is entitled to have the U.S. Marshal effect service of the 14 summons and complaint against defendants Archuleta, Massia, and Garcia. See 28 U.S.C. 15 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties 16 in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by 17 a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 18 forma pauperis under 28 U.S.C. § 1915.”). 19 Dragasits also alleges that defendants Quijada, Saliewsky, Scharr, and John Does 20 1–5 failed to protect him in violation of the Eighth Amendment when they failed to 21 intervene. The Eighth Amendment imposes a duty on prison officials to “take reasonable 22 measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832. But see 23 Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) (noting that liability does not 24 attach unless officers have a “realistic opportunity” to intercede). Dragasits alleges Quijada 25 approached him, saw Archuleta trip him from behind, and with “a look of concern and 26 shock about him . . . he extended his arms as if to catch me.” (ECF 14, at 11.) Since Quijada 27 was allegedly in a position to protect Dragasits, Quijada had a “realistic opportunity” to 28 act, so those allegations plausibly state an Eighth Amendment failure-to-protect claim. See 1 Cunningham, 229 F.3d at 1289–90. 2 The remainder of the defendants, though, are a different story. Dragasits claims 3 Saliewsky and John Does 1–5 were standing with their backs to the wall and that Scharr 4 arrived “some minutes later.” (ECF 14, at 11–12, 17–18, 26.) Dragasits was previously 5 informed that such conclusory allegations fail to state a claim. (ECF 4, at 4.) He once again 6 fails to provide factual allegations showing that these defendants had a realistic opportunity 7 to intervene. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (holding that 8 allegations that a defendant caused a deprivation of a plaintiff’s federal rights “must be 9 individualized and focus on the duties and responsibilities of each individual defendant 10 whose acts or omissions are alleged to have caused a constitutional deprivation”). 11 Because Dragasits had been previously instructed on the elements of an Eighth 12 Amendment failure-to-protect claim and it is clear he is unable to state such a claim against 13 Saliewsky, Scharr, and John Does 1–5, this claim is dismissed for failure to state a claim 14 under 28 U.S.C. §§ 1915(e)(2) & 1915A(b), without further leave to amend. See Fidelity 15 Fin. Corp. v. Federal Home Loan Bank of S.F., 792 F.2d 1432, 1438 (9th Cir. 1986) (noting 16 that when “the court has already given the plaintiff an opportunity to amend his complaint” 17 on the same point, the “district court’s discretion to deny leave to [further] amend is 18 particularly broad”). 19 C. ADA Claim 20 Dragasits alleges the defendants’ actions also violated the American with 21 Disabilities Act because he is a disabled person. (ECF 14, at 21.) To state a claim under 22 the ADA, Dragasits must allege: 23 (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, 24 or activities; (3) he was either excluded from participation in or denied the 25 benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, 26 denial of benefits, or discrimination was by reason of (his) disability. 27 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (cleaned up). 28 1 The amended complaint fails to state an ADA claim for the same reasons the original 2 complaint failed to state a claim: Dragasits has once again failed to plausibly allege any 3 action by any defendant was taken by reason of his disability. (ECF 4, at 5.) Dragasits has 4 also once again failed to plausibly allege he brought the ADA claim within the statute of 5 limitations. The statute of limitations for an ADA claim is three years beginning after “the 6 last events alleged in his complaint.” Sharkey v. O’Neal, 778 F.3d 767, 773 (9th Cir. 2015). 7 Dragasits initiated this action on June 20, 2024, over five years after the events alleged. 8 See U.S. ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 9 (9th Cir. 2013) (holding that a claim may be dismissed as untimely “when the running of 10 the statute of limitations is apparent on the face of the complaint”). 11 Because Dragasits has failed to state a claim for a second time on the same basis, his 12 ADA claim is dismissed without further leave to amend. See Fidelity Fin. Corp., 792 F.2d 13 at 1438. 14 D. Due Process Claim 15 Dragasits argues that he was denied due process during the hearing and rehearing on 16 the rules violation when: (a) hearing officer Ferrel did not include in the record or even 17 read Dragasits’s two-page written description of the events, which differed from 18 Archuleta’s purportedly false narrative; (b) investigating officer Avila denied Dragasits’s 19 requests for Archuleta’s presence at the hearing, to announce at chow that Dragasits was 20 looking for witnesses, and to introduce medical records; (c) chief disciplinary officer Juarez 21 failed to overturn the initial guilty finding; (d) warden Covello ordered a rehearing due to 22 Archuleta’s absence but did not investigate “all of the other complaints”; (e) Scharr, 23 Benyard, and appeals coordinators Godinez and Luna misclassified and approved the 24 reissued violation report; (f) hearing officer Nuckles failed to reflect in the rehearing record 25 that Archuleta could not attend the rehearing because she was on mental health leave and 26 failed to release Archuleta’s medical records; and (g) chief disciplinary officer Swaim 27 approved the guilty finding on the reissued violation. (ECF 14, at 14, 21–29, 32–36.) 28 Dragasits also alleges appeals reviewer Calvert and appeals coordinators Frijas, Gonzalez, 1 Allen, and John Does 7–8 refused to properly process his inmate appeals regarding staff 2 misconduct and allowed his transfer to Kern Valley to interfere with the exhaustion of his 3 administrative remedies. (Id. at 30–31, 35.) 4 The Due Process Clause of the Fourteenth Amendment prohibits states from 5 “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. 6 Const. amend. XIV, § 1. Dragasits must first identify a protected liberty or property 7 interest. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“[T]hose who seek to invoke 8 [the Fourteenth Amendment’s] procedural protection must establish that one of these 9 interests is at stake.”). A protected interest arises when a custodial sentence is increased in 10 “an unexpected manner” or when an inmate is subject to restrictions imposing “atypical 11 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 12 Sandin v. Conner, 515 U.S. 472, 484 (1995). 13 But none of the liberty interests Dragasits identifies qualify. Inmates do not have a 14 protected liberty interest in the processing of grievances. “There is no legitimate claim of 15 entitlement to a grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 16 Nor has Dragasits plausibly alleged a protected liberty interest arising from his transfer to 17 Kern Valley. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (noting that “no due process 18 protections were required upon the discretionary transfer of state prisoners to a 19 substantially less agreeable prison, even where that transfer visited a ‘grievous loss’ upon 20 the inmate.”). He also has not plausibly alleged a liberty interest with his allegation that 21 the violation report was based on Archuleta’s false narrative because “a prisoner does not 22 have a constitutional right to be free from wrongfully issued disciplinary reports.” Buckley 23 v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997). 24 Dragasits has failed to allege that a liberty interest was at stake during the hearing or 25 rehearing on the violations report because there are no allegations he was subject to a longer 26 sentence because of the disciplinary proceeding or that a significant hardship was imposed 27 on him because of its outcome. At the first hearing, Dragasits was found guilty of assault 28 on a peace officer by means not likely to cause great bodily injury, but that was reduced at 1 the rehearing to a guilty finding of behavior that might lead to violence. (ECF 14-4, 2 at 2–29.) The amended complaint’s exhibits indicate there was no loss of privileges or 3 custody credits at the rehearing. (Id. at 25–28, 32.) 4 That isn’t necessarily the end of the issue. There may still be due-process protections, 5 even when a protected liberty interest has not been identified, if “the findings of the prison 6 disciplinary board” are not “supported by some evidence in the record.” Superintendent v. 7 Hill, 472 U.S. 445, 454–55 (1985). The exhibits attached to the amended complaint, 8 though, make it clear that the decision was supported by evidence in the record. 9 Specifically, the disciplinary hearing includes Archuleta’s statement concerning her 10 interaction with Dragasits on that critical day: 11 Inmate Dragasits stated “Fuck You!” and pushed his walker in my direction. I yelled ‘stop, get down’, with negative results. Inmate Dragasits continued 12 walking toward me with his walker, he then suddenly lunged at me, pushing 13 his walker toward my person. Seeing an imminent threat to my person, I instinctively moved back to avoid getting hit by his walker, pushed his walker 14 to my left side, grabbed his right arm with my left hand and with my right 15 hand on his side, I pulled Inmate Dragasits to the ground. Once on the ground, I attempted to place handcuffs on Inmate Dragasits with negative results. 16 Inmate Dragasits was resisting me by kicking his legs and pulling his arms 17 from side to side and attempted to stand up. I ordered him to stop resisting, with negative results. I held him on the ground with both my hands on his 18 back. Responding staff arrived, placed handcuffs on him. Inmate Dragasits 19 continued to resist after he was handcuffed, by kicking and moving his body from side to side. I utilized my State Issued radio and stated Central Control 20 “Code One in front of Delta culinary.” Once Inmate Dragasits calmed down 21 and was placed in handcuffs he was escorted to the Facility D gymnasium holding cells. 22 (ECF 14-4, at 58.) 23 Although Dragasits attaches conflicting accounts (ECF 14-2, at 2–4), Archuleta’s 24 statement provides some evidence in the record supporting the guilty finding. See Hill, 25 472 U.S. at 457 (finding that the “some evidence” standard is met with “meager” evidence 26 as long as “the record is not so devoid of evidence that the findings of the disciplinary 27 board were without support or otherwise arbitrary”); id. at 455 (“Ascertaining whether this 28 1 standard is satisfied does not require examination of the entire record, independent 2 assessment of the credibility of witnesses, or weighing of the evidence.”). 3 So, the due-process claim is dismissed. And because the amended complaint’s 4 attachments make it clear Dragasits is unable to state a due-process claim, it is dismissed 5 without further leave to amend. See Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 6 729, 738 (9th Cir. 1987) (“Denial of leave to amend is not an abuse of discretion where the 7 pleadings before the court demonstrate that further amendment would be futile.”). 8 E. First Amendment Free Speech and Access-to-Courts Claims 9 Dragasits claims he was denied his First Amendment right to free speech when he 10 was hampered from providing his version of the events during the disciplinary proceedings 11 and staff complaints, and was denied his right of access to courts because Kern Valley is 12 less conveniently located to attend his resentencing proceedings at the San Diego County 13 Superior Court. (ECF 14, at 13, 22–36.) 14 Starting with the access claim, inmates share in the “fundamental constitutional right 15 of access to the courts.” Lewis v. Casey, 518 U.S. 343, 346 (1996). But Dragasits must 16 allege facts showing actual injury arising from the lack of access to his legal materials, that 17 is, “actual prejudice with respect to contemplated or existing litigation, such as the inability 18 to meet a filing deadline or to present a claim.” Id. at 348. He must allege the loss of a 19 “non[-]frivolous” or “arguable” underlying claim. Christopher v. Harbury, 536 U.S. 403, 20 415 (2002). The nature and description of the underlying claim must be set forth in the 21 pleading “as if it were being independently pursued.” Id. at 417. Dragasits is unable to 22 allege an actual injury by his transfer to a prison less convenient for him to travel to the 23 San Diego Superior Court. 24 As to free speech, a prisoner retains free-speech rights that are not “inconsistent with 25 his status as a prisoner or with the legitimate penological objectives of the corrections 26 system.” Jones v. North Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 125 (1977). 27 In assessing a First Amendment free-speech claim, courts apply a four-factor test: 28 (1) whether there is “a valid, rational connection between the prison regulation and the 1 legitimate governmental interest put forward to justify it”; (2) “whether there are 2 alternative means of exercising the right that remain open to prison inmates”; (3) what 3 “impact accommodation of the asserted constitutional right will have on guards and other 4 inmates, and on the allocation of prison resources generally”; and (4) whether there is an 5 “absence of ready alternatives.” Turner v. Safley, 482 U.S. 78, 89–91 (1987) (cleaned up). 6 The amended complaint’s exhibits indicate that Dragasits was present at both 7 disciplinary hearings where he made statements (ECF 14-4, at 3, 6, 20, 23), and that his 8 appeals of his staff complaints reflect his written statements (id. at 30, 33, 37–38, 40–50). 9 Thus, Dragasits has not plausibly alleged he was denied an opportunity to speak to begin 10 with, much less that there was an absence of alternative means available for him to do so. 11 Both First Amendment claims are dismissed. Because it is clear Dragasits is unable 12 to state such claims, they are dismissed without further leave to amend. See Schmier v. 13 United States Ct. of Appeals for Ninth Cir., 279 F.3d 817, 824 (9th Cir. 2002). 14 F. Supervisor Liability 15 Although unclear, it appears Dragasits also brings claims against defendants Ortiz 16 and Stewart as supervisors of the defendants who beat him, and against the CDCR and 17 secretary Macomber for hiring and failing to train or discipline the defendants. (ECF 14, 18 at 2, 21, 28–29, 37–39.) Dragasits has failed to set forth facts which plausibly show these 19 defendants’ “personal participation in the alleged rights deprivation.” Jones v. Williams, 20 297 F.3d 930, 934 (9th Cir. 2002); see also id. (“[T]here is no respondeat superior liability 21 under section 1983.”). Dragasits makes at most conclusory allegations with respect to the 22 supervisory defendants, and any such claims are dismissed with leave to amend. 23 G. State Law Claims 24 Plaintiff also brings state law claims for intentional infliction of emotional distress 25 and assault and battery. (ECF 14, at 40, 42.) The elements of a claim of intentional infliction 26 of emotional distress are “(1) the defendant engages in extreme and outrageous conduct 27 with the intent to cause, or with reckless disregard for the probability of causing, emotional 28 distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the 1 defendant’s extreme and outrageous conduct was the actual and proximate cause of the 2 plaintiff’s extreme or severe emotional distress.” So v. Shin, 212 Cal. App. 4th 652, 671 3 (2013); see also Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996). For the same 4 reasons the amended complaint plausibly alleges an Eighth Amendment claim against 5 Archuleta, Massia, Garcia, and Quijada, it plausibly alleges an intentional infliction of 6 emotional distress claim against those defendants. 7 The elements of a cause of action for assault under California law are: “(1) defendant 8 acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a 9 harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched 10 in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was 11 about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; 12 (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing 13 plaintiff’s harm.” So, 212 Cal. App. 4th at 668–69. “The essential elements of a cause of 14 action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, 15 with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; 16 (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person 17 in plaintiff’s position would have been offended by the touching.” Id. at 669. For the same 18 reasons the amended complaint plausibly alleges an Eighth Amendment claim against 19 Archuleta, Massia, Garcia, and Quijada, it plausibly alleges assault and battery claims 20 against them. 21 CONCLUSION 22 Accordingly, the Court: 23 1) DISMISSES all claims in the amended complaint except the Eighth 24 Amendment and state law claims against Archuleta, Massia, Garcia, and Quijada. 25 26 27 28 l 2) ORDERS Dragasits to file any second amended complaint remedying the 2 || identified defects by September 26, 2025. Alternatively, by September 26, 2025, Dragasits 3 ||may notify the Court that he intends to proceed only on the surviving claims in the current 4 || complaint. 5 Dated: August 29, 2025 6

8 Hon. rew G. Schopler United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 a oe