1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BROWN, Case No. 1:19-cv-00626-DAD-SKO (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO

FILE A SECOND AMENDED

13 v. COMPLAINT OR NOTIFY THE COURT

OF HIS DESIRE TO PROCEED ONLY ON

14 D. WOODWARD, et al., CLAIMS FOUND COGNIZABLE

15 Defendants. (Doc. 15)

16 21-DAY DEADLINE

17 18 Plaintiff James Brown alleges the defendants subjected him to cruel and unusual 19 punishment and retaliation. (Doc. 15.) The Court finds that Plaintiff states cognizable claims of 20 deliberate indifference against Defendants Woodward and Lopez, as well as cognizable claims of 21 excessive force and retaliation against Defendant Woodward. Plaintiff’s claims against the 22 remaining defendants are not cognizable, and Plaintiff may not seek expungement of his rules 23 violation report because it would affect the length of his incarceration. See Ramirez v. Galaza, 24 334 F.3d 850, 856 (9th Cir. 2003). Accordingly, the Court orders Plaintiff to file a second 25 amended complaint curing the deficiencies identified in this order or, in the alternative, notify the 26 Court that he wishes to proceed only on the claims found cognizable against Defendants 27 Woodward and Lopez. /// 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The 7 Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient 8 facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 9 699 (9th Cir. 1990). 10 II. PLEADING REQUIREMENTS 11 A. Federal Rule of Civil Procedure 8(a) 12 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 13 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 14 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 15 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 16 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 17 quotation marks and citation omitted). 18 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 19 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 20 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 21 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 22 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 23 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 24 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 25 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 26 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 27 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 1 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation 2 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 3 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 4 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to 5 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 6 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 7 B. Linkage and Causation 8 Section 1983 provides a cause of action for the violation of constitutional or other federal 9 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 10 section 1983, a plaintiff must show a causal connection or link between the actions of the 11 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 12 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 13 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 14 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 15 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 16 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 17 III. DISCUSSION 18 A. Plaintiff’s Allegations1 19 Plaintiff names as defendants Correctional Officers Woodward, Preez, and Villareal; 20 Correctional Sergeants Lopez, Burnes, and Harris; Licensed Vocational Nurse Sellers; 21 Correctional Counselor Ceballos; Chief Deputy Wardens Campbell and Perez; Associate Warden 22 Clesmiak; CDCR Secretary Diaz; and John Doe, CCPOA Union Representative. (Doc. 15 at 2-3, 23 4.) Plaintiff alleges that, on August 27, 2019, Correctional Officers Woodward and Preez escorted 24 him to back to his cell following a building search. (Id. at 5.) After Plaintiff entered his cell and 25 the door closed behind him, Plaintiff placed his hands outside the “trayslot” to allow an officer to 26 remove the handcuffs on his wrists, per prison procedure. (Id. at 6.) Woodward used wire cutters 27 to remove the plastic restraints and “punctur[ed]” Plaintiff’s wrist. (Id.) Plaintiff yelled that 1 Woodward had cut him, but “Woodward smiled” and said he “‘just pinched’ him.” (Id.) Plaintiff 2 noticed blood running down his wrist and onto the floor. (Id.) He asked Woodward for medical 3 attention, but “Woodward continued smiling, walking away from his cell.” (Id.) 4 “Staff” then informed Correctional Officer Villareal of Plaintiff’s injury. (Id. at 7.) 5 Plaintiff showed Villareal his wrist and the blood on the floor and demanded to speak to a 6 sergeant. (Id.) Correctional Sergeant Lopez responded and said Plaintiff needed medical attention. 7 (Id.) Plaintiff then observed Lopez speaking with Woodward and Correctional Sergeant Harris. 8 (Id.) Ten minutes later, Lopez returned to Plaintiff’s cell and said that she had spoken with a 9 nurse, who would come by shortly. (Id.) Plaintiff replied that he had not seen Lopez speak with a 10 nurse, and he informed Lopez that he believed Woodward had cut him purposefully. (Id. at 7-8.) 11 Later, Plaintiff informed Villareal that he was still bleeding and needed medical care. (Id. 12 at 8.) Villareal responded that she had already informed Lopez, and she later told Plaintiff to 13 “stop crying like a baby, and go sit down somewhere.” (Id.) After a shift change, Plaintiff lied to 14 Correctional Officer Xiong, “claiming he was ‘suicidal,’” to elicit medical attention. (Id.) 15 Licensed Vocational Nurse Sellers arrived minutes later and treated Plaintiff’s wound. (Id. at 9.) 16 Plaintiff informed Sellers of the incident and Lopez’s claim that she had notified the “2nd watch 17 nurse about it,” but Sellers responded that she had worked “both shifts” and was not informed of 18 Plaintiff’s injuries. (Id.) Sellers stated that she completed a “CDCR 7219 Medical Report of 19 Injury,” but she did not. (Id.) 20 On August 28, 2019, Plaintiff informed Correctional Sergeant Burnes about the incident. 21 (Id.) The next day, Plaintiff asked Burnes about the status of an excessive force investigation. 22 (Id.) Burnes responded that “there was no need for one.” (Id.) 23 Plaintiff filed administrative grievances regarding the incident. (Id. at 10, 11, 13.) 24 Woodward then began to subject Plaintiff to “multiple shower, yard access deprivations, and 25 retaliatory attacks with Rules Violation Reports.” (Id. at 13.) 26 Based on the above, Plaintiff alleges that Defendants subjected him to excessive force and 27 retaliation. (Id. at 3, 12.) The Court also finds that Plaintiff states a viable claim of deliberate 1 B. Claims for Relief 2 1. Excessive Force under the Eighth Amendment 3 “[T]he unnecessary and wanton infliction of pain on prisoners constitutes cruel and 4 unusual punishment” in violation of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 328 5 (1986) (internal quotation marks and citation omitted). As courts have observed, “[p]ersons are 6 sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. 7 Iowa) (quoting Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977)) (citation omitted). 8 A correctional officer engages in excessive force in violation of the Cruel and Unusual 9 Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances, 10 and (2) “harms an inmate for the very purpose of causing harm” and not “as part of a good-faith 11 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). “[W]henever 12 prison officials stand accused of using excessive physical force …, the core judicial inquiry is … 13 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 14 and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). In making this 15 determination, courts may consider “the need for application of force, the relationship between 16 that need and the amount of force used, the threat reasonably perceived by the responsible 17 officials, and any efforts made to temper the severity of a forceful response.” Id. at 7. Courts may 18 also consider the extent of the injury suffered by the prisoner. Id. However, “significant” or 19 “serious” injury is not necessary to state a claim for relief. See id. at 7-10. 20 Plaintiff states a cognizable claim of excessive force against Defendant Woodward. 21 Plaintiff alleges that Woodward intentionally cut his wrist when removing his plastic restraints. 22 (Doc. 15 at 6.) If true, such force was clearly not intended to maintain security but to cause harm. 23 See Hoard, 904 F.3d at 788. Moreover, Plaintiff’s injury was not de minimis; thus, whether the 24 injury was serious or significant is irrelevant. See Hudson, 503 U.S. at 9-10. 25 Plaintiff, however, fails to link the remaining defendants to his claim. Although Plaintiff’s 26 allegations show that Preez, Villareal, Lopez, Sellers, and Harris were present just before, during, 27 or after Woodward cut his wrist (see Doc. 15 at 5-9), Plaintiff does not provide facts that show 1 suffered. See Johnson, 588 F.2d at 743. For example, Plaintiff alleges that Nurse Sellers failed to 2 complete a medical report (see id. at 9, 10), but this allegation is irrelevant to Plaintiff’s claim of 3 excessive force. As stated in section II.B, supra, a defendant is only liable if her actions or 4 failures to act caused the constitutional deprivation of which Plaintiff complains. See Johnson, 5 588 F.2d at 743. Here, that claim is excessive force under the Eighth Amendment. (Doc. 15 at 3.) 6 Plaintiff appears to name Harris, Burnes, Ceballos, Campbell, Perez, Clesmiak, and Diaz 7 as defendants solely because they hold supervisory positions. However, section 1983 does not 8 impose liability on a supervisor simply because her subordinate has violated Plaintiff’s rights. See 9 Iqbal, 556 U.S. at 676-77. To impose liability, Plaintiff must allege specific misdeeds that each 10 defendant committed, rather than the misdeeds of those he or she supervised. See id. References 11 to memoranda that address use of force generally, or congressional hearings regarding use of 12 force, (see Doc. 15 at 4, 11, 13), are insufficient to show that every defendant in this case caused 13 Plaintiff to suffer excessive force. 14 To establish supervisory liability, Plaintiff must allege facts that show that a supervisor 15 was on notice of a pattern or practice of constitutional violations, such that his or her actions or 16 failures to act constituted approval or acquiescence to such pattern or practice. See Hunter v. Cty. 17 of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011); Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 18 2011); Henry v. Cty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997). Plaintiff’s allegations fail to 19 meet this standard. Plaintiff alleges that prison officials “continue[] to practice an unofficial 20 policy of liability avoidance, covering-up guards abuse of force against inmates by failing to 21 report and investigate injuries caused and retaliation against grievants, conducting counterfeit and 22 untimely investigations.” (Doc. 15 at 5.) He also alleges that Secretary Diaz “acquiesce[d]” to 23 such unofficial policy when prison officials rejected his administrative grievances. (See id. at 10.) 24 However, such conclusory statements, without factual support, are insufficient to state a 25 cognizable claim of supervisory liability. See Iqbal, 556 U.S. at 678. The only facts that Plaintiff 26 alleges concern his own experience, where he allegedly suffered excessive force on one occasion. 27 Such allegations are insufficient to show a pattern, practice, or “unofficial policy” of excessive 1 To the extent that Plaintiff challenges the procedures for investigating his staff complaint, 2 the Court notes that Plaintiff does not have a constitutional right to specific inmate grievance 3 procedures. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Thus, Plaintiff’s allegation that 4 Defendant Harris’ investigation of his complaint constituted a “conflict of interest” (Doc. 15 at 7) 5 is not a cognizable claim. 6 2. Deliberate Indifference to Serious Medical Needs 7 “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to 8 [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) 9 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is 10 manifested by prison doctors in their response to the prisoner’s needs or by prison guards in 11 intentionally denying or delaying access to medical care….” Estelle, 429 U.S. at 104-05. “A 12 medical need is serious if failure to treat it will result in significant injury or the unnecessary and 13 wanton infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations 14 omitted). “A prison official is deliberately indifferent to that need if he ‘knows of and disregards 15 an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837 16 (1994)). 17 The test for deliberate indifference to medical need is thus two-pronged and has objective 18 and subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To 19 establish such a claim, a prisoner must first “show a serious medical need by demonstrating that 20 failure to treat [the] prisoner’s condition could result in further significant injury or the 21 unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants’ 22 response to the need was deliberately indifferent.” Id. (internal quotation marks and citation 23 omitted). 24 As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need 25 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 26 worthy of comment or treatment; the presence of a medical condition that significantly affects an 27 individual's daily activities; or the existence of chronic and substantial pain.’” Colwell v. 1 As to the second, subjective prong, deliberate indifference “describes a state of mind more 2 blameworthy than negligence” and “requires more than ordinary lack of due care for the 3 prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation 4 marks and citation omitted). Deliberate indifference exists where a prison official “knows that 5 [an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take 6 reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a 7 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm 8 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not 9 show his harm was substantial; however, such would provide additional support for the inmate’s 10 claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 11 1096 (9th Cir. 2006) (citation omitted). 12 For screening purposes, the Court finds that Plaintiff’s injury to his wrist satisfies the first, 13 objective prong. Plaintiff alleges that his injury caused him to bleed to the ground and that 14 Sergeant Lopez agreed that he required medical attention. (See Doc. 1 at 6-7). Thus, a reasonable 15 patient would find the injury worthy of comment or treatment. See Colwell, 763 F.3d at 1066. 16 The Court further finds that Plaintiff’s allegations satisfy the second, subjective prong 17 with respect to Defendants Woodward and Lopez. According to Plaintiff, after Woodward cut his 18 wrist and he started bleeding, Plaintiff yelled that he required medical attention, but Woodward 19 simply smiled and walked away. (Doc. 15 at 6.) Plaintiff also alleges that, after showing Lopez 20 his injury, Lopez failed to call for medical assistance, despite saying that she would do so. (Id. at 21 7, 9.) Leniently construed, see Hebbe, 627 F.3d at 342, Plaintiff’s allegations show that 22 Woodward and Lopez knew of a risk of serious harm to Plaintiff and failed to take any measures 23 to abate that risk. See Farmer, 511 U.S. at 847. Plaintiff thus states cognizable deliberate 24 indifference claims against Officer Woodward and Sergeant Lopez. He does not state cognizable 25 claims against the remaining defendants. 26 3. Retaliation 27 A claim for retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 1 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the 2 right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson, 3 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took 4 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff 5 must allege a causal connection between the adverse action and the protected conduct.” Id. In 6 other words, the plaintiff must claim the defendant subjected him to an adverse action because of 7 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege 8 that the official’s acts would chill or silence a person of ordinary firmness from future [protected] 9 activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation omitted). “Fifth, the 10 plaintiff must allege ‘that the prison authorities’ retaliatory action did not advance legitimate 11 goals of the correctional institution….’” Id. (quoting Rizzo, 778 F.2d at 532). 12 Plaintiff states a cognizable retaliation claim against Officer Woodward. Plaintiff alleges 13 that he filed an administrative grievance against Woodward and, in retaliation, Woodward 14 subjected him to “multiple shower, yard access deprivations, and retaliatory attacks with Rules 15 Violation Reports.” (Doc. 15 at 13.) Thus, Plaintiff’s allegations show that Woodward took 16 adverse actions against him for his engagement in protected conduct. Rhodes, 408 F.3d at 567. 17 For the same reasons provided in section III.B.1, supra, Plaintiff does not state cognizable 18 retaliation claims against the remaining defendants. 19 C. Plaintiff’s Requested Remedies 20 Plaintiff seeks damages and the expungement of the rules violation report (RVR) against 21 him. (Doc. 15 at 14.) Plaintiff states that the “RVR resulted in the loss of good time credit 22 affecting his release date.” (Id. at 13.) 23 Section 1983 allows for Plaintiff to recover damages. See 42 U.S.C. § 1983. However, 24 Plaintiff may not seek expungement of his RVR or restoration of lost good-time credits, since this 25 would “render invalid a[n] … administrative sanction that affect[s] the length of [his] 26 confinement.” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003). “[W]hen a state prisoner is 27 challenging the very fact or duration of his physical imprisonment, … his sole federal remedy is a 1 Plaintiff states, expungement of his RVR would decrease the length of his imprisonment, Plaintiff 2 may not seek relief under section 1983 until the disciplinary conviction has been invalidated by a 3 writ of habeas corpus. See Ramirez, 334 F.3d at 856; see also Edwards v. Balisok, 520 U.S. 641, 4 646-48 (1997). 5 IV. CONCLUSION AND ORDER 6 For the reasons set forth above, the Court grants Plaintiff leave to amend his complaint. 7 Within 21 days of the date of service of this order, Plaintiff shall file a second amended 8 complaint curing the deficiencies identified herein or, in the alternative, file a notice that that he 9 wishes to proceed only on the claims found cognizable against Woodward and Lopez and to 10 dismiss the remaining defendants and his request for expungement. If Plaintiff no longer wishes 11 to pursue this action, he may file a notice of voluntary dismissal. If Plaintiff needs an extension of 12 time to comply with this order, he shall file a motion seeking an extension no later than 21 days 13 from the date of service of this order. 14 Plaintiff is informed that an amended complaint supersedes the original complaint and 15 prior amendments. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, the amended 16 complaint must be “complete in itself without reference to the prior or superseded pleading.” 17 Local Rule 220. The Court provides Plaintiff with an opportunity to amend his complaint to cure 18 the deficiencies identified in this order. However, Plaintiff may not change the nature of this suit 19 by adding unrelated claims in an amended complaint. 20 Accordingly, the Court ORDERS: 21 1. Plaintiff is GRANTED leave to file a second amended complaint; 22 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 23 3. Within 21 days of the date of service of this order, Plaintiff must file one of the 24 following three items: 25 a. a second amended complaint curing the deficiencies identified in this order, or 26 b. a notice that he does not wish to file a second amended complaint and instead 27 wishes to (1) proceed only on his excessive force and retaliation claims against 1 Defendants Woodward and Lopez, (2) dismiss all remaining defendants, and 2 (3) dismiss his request for expungement of his rules violation report, or 3 c. a notice of voluntary dismissal of this entire case. 4 If Plaintiff fails to comply with this order, the Court will recommend that this action 5 proceed only on the claims found cognizable herein and that all other claims and defendants 6 be dismissed with prejudice. 7

IT IS SO ORDERED.

8

Sheila K. Oberto 9 Dated: May 22, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

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