1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL GODINEZ, Case No. 1:19-cv-01746-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 S. KERNAN, et al., CLAIMS FOUND COGNIZABLE

15 Defendants. (Doc. 8)

16 21-DAY DEADLINE

17 18 Plaintiff Rafael Godinez alleges the defendants subjected him to excessive force and 19 retaliation. (Doc. 8.) The Court finds that Plaintiff’s first amended complaint states cognizable 20 claims against Defendants Algazzaly, Gray, and Herrick, and four Doe defendants, but it does not 21 state cognizable claims against the remaining defendants. Accordingly, the Court grants Plaintiff 22 one final opportunity to amend his complaint. Alternatively, Plaintiff may file a notice that he 23 wishes to proceed only on the claims found cognizable in this order and to dismiss all remaining 24 claims and defendants. 25 I. SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 1 frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary 2 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should 3 dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to 4 support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir. 1990). 6 II. PLEADING REQUIREMENTS 7 A. Federal Rule of Civil Procedure 8(a) 8 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 9 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 10 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 11 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 12 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 13 quotation marks and citation omitted). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 16 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 17 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 18 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 19 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 20 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 21 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 22 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 23 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 24 rights complaint may not supply essential elements of the claim that were not initially pled,” 25 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation 26 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 27 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 1 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 2 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 3 B. Linkage and Causation 4 Section 1983 provides a cause of action for the violation of constitutional or other federal 5 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 6 section 1983, a plaintiff must show a causal connection or link between the actions of the 7 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 8 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 9 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 10 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 11 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 12 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 13 C. Federal Rules of Civil Procedure 18 and 20 14 Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief to “join, 15 as independent or alternative claims, as many claims as it has against an opposing party.” 16 However, a plaintiff may not join unrelated claims against multiple defendants in a single action. 17 See Fed. R. Civ. P. 20(a)(2); see also Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) 18 (“unrelated claims against different defendants belong in separate lawsuits”). A plaintiff may 19 bring claims against more than one defendant only if (1) the claims arise out of the same 20 transaction, occurrence, or series of transactions or occurrences, and (2) there is a question of law 21 or fact common to all defendants. Fed. R. Civ. P. 20(a)(2); see Coughlin v. Rogers, 130 F.3d 22 1348, 1351 (9th Cir. 1997). 23 III. DISCUSSION 24 A. Plaintiff’s Allegations 25 Plaintiff’s claims stem from incidents at California Correctional Institution (CCI). (Doc. 8 26 at 1.) In Claim I, Plaintiff alleges that, on January 8, 2017, Correctional Officers Algazzaly and 27 Herrick, as well as four unknown officers (Does 1 through 4), subjected him to excessive force. 1 if to place [him] in handcuffs.” (Id.) Instead, the officers held him down as Algazzaly and Herrick 2 punched him in the ribs, buttocks, and arms, causing visible injuries “all over [him].” (Id.) 3 Plaintiff alleges that, when Correctional Lieutenant Tingley interviewed him about the incident, 4 he stated “some … don’t respond to anything else” and asked if Plaintiff would “keep pursuing 5 this and poking the bear.” (Id.) Plaintiff also alleges that Deputy Warden Jhonson, Warden 6 Sullivan, and Secretary Kernan “were ordering an unwritten policy of misconduct.” (Id.) 7 In Claim II, Plaintiff alleges that Correctional Officer Gray issued a false rules violation 8 report against him in retaliation for a grievance he filed for the January 8 incident. (Id. at 5.) Gray 9 charged him with “possession of dangerous contraband” for a razor that was “hidden in [his] 10 mattress.” (Id.) Plaintiff filed an administrative appeal regarding the alleged retaliatory action. 11 (Id.) Plaintiff states that Correctional Lieutenant Nunley interviewed Plaintiff’s cellmate about the 12 allegation but omitted the interview from his report “[i]n a conspiracy to cover-up the 13 misconduct.” (Id.) 14 In Claim III, Plaintiff alleges that, on March 8, 2017, he attempted to file an 15 administrative appeal regarding legal mail being returned to him. (Id. at 6.) Plaintiff states that 16 Appeals Coordinator Wood and “AGPA” Zanchi screened out his appeal on four occasions. (Id.) 17 B. Plaintiff’s Claims for Relief 18 1. Excessive Force 19 The Eighth Amendment proscribes the infliction of cruel and unusual punishment. See 20 Estelle v. Gamble, 429 U.S. 97, 101 (1976). The “unnecessary and wanton infliction of pain” on 21 prisoners “constitutes cruel and unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 22 (1986) (internal quotation marks and citation omitted). As courts have observed, “[p]ersons are 23 sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. 24 Iowa) (quoting Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977)) (citation omitted). “Being 25 violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their 26 offenses against society.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks 27 and citation omitted). 1 A correctional officer engages in excessive force in violation of the Cruel and Unusual 2 Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances, 3 and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith 4 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). In other 5 words, “whenever prison officials stand accused of using excessive physical force …, the core 6 judicial inquiry is … whether force was applied in a good-faith effort to maintain or restore 7 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 8 (1992). In making this determination, courts may consider “the need for application of force, the 9 relationship between that need and the amount of force used, the threat reasonably perceived by 10 the responsible officials, and any efforts made to temper the severity of a forceful response.” Id. 11 at 7. Courts may also consider the extent of the injury suffered by the prisoner; the absence of 12 serious injury, however, is not determinative. Id. 13 Plaintiff states cognizable excessive force claims against Correctional Officers Algazzaly 14 and Herrick and the four Doe defendants. He alleges the officers held him down and punched him 15 repeatedly, causing him injuries. (Doc. 8 at 4.) The Court acknowledges that, at the screening 16 stage, it is unable to consider the Hudson factors, such as any need alleged by the defendants for 17 the application of force or the relationship between that need and the amount of force used. The 18 Court finds only that Plaintiff’s allegations state claims of excessive force that are plausible on 19 their face. See Iqbal, 556 U.S. at 678. 20 Plaintiff does not state a cognizable claim against the remaining defendants. His 21 allegations regarding Lieutenant Tingley’s inappropriate statements during his interview (Doc. 8 22 at 4) are insufficient to show that Tingley’s actions or inactions caused the excessive force of 23 which he complains. See Johnson, 588 F.2d at 743. Plaintiff also alleges that Secretary Kernan, 24 Warden Sullivan, and Deputy Warden Jhonson “were ordering an unwritten policy of 25 misconduct” (Doc. 8 at 4), but he provides no facts to support this assertion. As explained in 26 section II.A, supra, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff’s 1 State Prison (Doc. 8 at 4) do not provide facts regarding the actions or inactions of Kernan, 2 Sullivan, or Johnson specifically. 3 To the extent Plaintiff names these defendants simply because they hold supervisory 4 positions, the Court notes that section 1983 does not impose liability on a supervisor merely 5 because his subordinate has violated Plaintiff’s rights. See Iqbal, 556 U.S. at 676-77. To impose 6 liability under section 1983, Plaintiff must allege specific misdeeds that each defendant 7 committed, rather than the misdeeds of those he or she supervised. See id. 8 2. Retaliation 9 A claim for retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 10 2012). First, the plaintiff must allege that he engaged in protected activity. Id. For example, filing 11 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the 12 right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson, 13 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took 14 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff 15 must allege a causal connection between the adverse action and the protected conduct.” Id. In 16 other words, the plaintiff must claim the defendant subjected him to an adverse action because of 17 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege 18 that the official’s acts would chill or silence a person of ordinary firmness from future First 19 Amendment activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation 20 omitted). “Fifth, the plaintiff must allege ‘that the prison authorities’ retaliatory action did not 21 advance legitimate goals of the correctional institution….’” Id. (quoting Rizzo, 778 F.2d at 532). 22 Plaintiff states a cognizable retaliation claim against Correctional Officer Gray. He alleges 23 that he engaged in protected conduct, i.e., filing an inmate grievance regarding the January 8, 24 2017 excessive force incident, and that Officer Gray subjected him to an adverse action because 25 of such conduct, i.e., charging him with a false disciplinary violation. (Doc. 8 at 5.) 26 Plaintiff does not state a cognizable claim against Correctional Lieutenant Nunley. 27 Plaintiff alleges that, in his report on Plaintiff’s appeal regarding Gray’s alleged retaliation, 1 misconduct.” (Id.) However, Plaintiff does not provide any facts to support this conclusory 2 statement. See Iqbal, 556 U.S. at 678. To the extent Plaintiff challenges Nunley’s processing of 3 his administrative appeal itself, the Court notes that Plaintiff does not have a “constitutional 4 entitlement to … specific inmate grievance procedure[s].” Ramirez v. Galaza, 334 F.3d 850, 860 5 (9th Cir. 2003) (citation omitted). 6 Plaintiff’s claims against Appeals Coordinator Wood and “AGPA” Zanchi are also not 7 cognizable. Plaintiff’s allegations against these defendants are limited to their processing of his 8 administrative appeals regarding his legal mail. (Doc. 8 at 6.) As stated above, Plaintiff has no 9 constitutional right to specific appeals procedures. 10 C. Misjoinder of Defendants 11 As explained in section II.C, supra, a plaintiff may not join unrelated claims against 12 multiple defendants in a single action. See Fed. R. Civ. P. 20(a)(2). A plaintiff may bring claims 13 against more than one defendant only if the claims arise out of the same occurrence or series of 14 occurrences. See Fed. R. Civ. P. 20(a)(2); Coughlin, 130 F.3d at 1351. 15 Plaintiff’s claims against Defendants Wood and Zanchi do not arise out of the same 16 occurrence or series of occurrences as his claims against the remaining defendants. Plaintiff’s 17 claims against the other defendants are for alleged excessive force as well as retaliation based on 18 a grievance he filed regarding the excessive force. (See Doc. 8 at 4-5.) Plaintiff’s claims against 19 Wood and Zanchi, on the other hand, are for the alleged improper screening of his grievances 20 regarding the handling of his legal mail. (Id. at 6.) These claims are unrelated for purposes of 21 Rule 20 and cannot be brought in the same suit. 22 As explained above, Plaintiff does not state any cognizable claims against Defendants 23 Wood and Zanchi. The misjoinder of these defendants provides alternative grounds to dismiss 24 them from this lawsuit. Fed. R. Civ. P. 21 (“the court may at any time, on just terms, add or drop 25 a party”). 26 IV. CONCLUSION AND ORDER 27 For the reasons set forth above, the Court finds that Plaintiff’s first amended complaint 1 Defendants Algazzaly, Herrick, and Gray, but it does not state cognizable claims against the 2 remaining defendants. The Court grants Plaintiff one final opportunity to amend. Within 21 3 days, Plaintiff shall file a second amended complaint curing the deficiencies identified herein. 4 Alternatively, Plaintiff may file a notice that he wishes to proceed only the claims found 5 cognizable. If Plaintiff no longer wishes to pursue this action, he may file a notice of voluntary 6 dismissal. If he needs an extension of time to comply with this order, he shall file a motion 7 seeking an extension no later than 21 days from the date of service of this order. 8 Plaintiff is informed that an amended complaint supersedes the original complaint. Lacey 9 v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, an amended complaint must be 10 “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. The 11 Court provides Plaintiff with an opportunity to amend his complaint to cure the deficiencies 12 identified in this order. However, he may not change the nature of this suit by adding unrelated 13 claims in an amended complaint. 14 Accordingly, the Court ORDERS: 15 1. Plaintiff is GRANTED leave to file a second amended complaint; 16 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 17 3. Within 21 days from the date of service of this order, Plaintiff must file one of 18 the following three items: 19 a. a second complaint curing the deficiencies identified in this order, or 20 b. a notice that he does not wish to file a second amended complaint and instead 21 wishes to (1) proceed only on his excessive force and retaliation claims against 22 Defendants Algazzaly, Gray, Herrick, and Does 1-4, and (2) dismiss all 23 remaining claims and defendants, or 24 c. a notice of voluntary dismissal of this entire case. 25 /// 26 /// 27 /// 1 If Plaintiff fails to comply with this order, the Court will recommend that this action 2 proceed only on the claims found cognizable herein and that all other claims and defendants 3 be dismissed with prejudice. 4

IT IS SO ORDERED.

5

Sheila K. Oberto 6 Dated: August 17, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27