1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADAM MICHAEL KENDALL, Case No. 23-cv-02709-HSG

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE

TO AMEND

9 v.

10 GALINDO, et al., 11 Defendants.

12 13 Plaintiff, an inmate at California Correctional Institution, has filed a pro se action pursuant 14 to 42 U.S.C. § 1983, regarding events at Salinas Valley State Prison (“SVSP”) where he was 15 previously housed. His complaint (Dkt. No. 1) is now before the Court for review under 28 16 U.S.C. § 1915A. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 The complaint names as defendants the following Salinas Valley State Prison correctional 12 officials: officer Galindo, officer Uribe, nurse Donna Kelly, and the John Does responsible for 13 discipline of officer misconduct and safekeeping of prisoners. All are sued in their individual 14 capacity. 15 Plaintiff alleges that on May 31, 2021, his due process rights were violated, he was 16 retaliated against and subject to unlawful use of force, and he was denied medical care in the 17 following manner. 18 On May 31, 2021, Plaintiff was housed in the mental health section of SVSP’s 19 administrative segregation unit (“ASU”) for non-disciplinary reasons, and enrolled in the 20 Correctional Clinic Case Management System to address his mental health issues. Physical fitness 21 is a large part of the mental health treatment prescribed by Plaintiff’s physicians. When going to 22 yard, Plaintiff regularly brought paper and pen filler to track his workouts. Plaintiff also brought 23 slippers to cushion his fists while he does pushups. These items are permissible to bring to yard 24 and no correctional official had previously prohibited Plaintiff from bringing these items to yard. 25 On May 31, 2021, when defendants Galindo and Uribe came to escort Plaintiff to yard, 26 they refused to allow Plaintiff to bring the paper, pen filler, and slippers. When Plaintiff explained 27 that he regularly brought these items with him to yard as part of his mental health treatment and 1 became hostile. Defendant Galindo told Plaintiff that he did not care what others did and that he 2 would not allow Plaintiff to bring the paper and pen filler. Plaintiff put down the items. An 3 unidentified guard then yelled “Strip out!” and required Plaintiff to strip before going to yard 4 though no other inmate was asked to do so. Defendant Galindo then told Plaintiff that he could 5 not bring his slippers to the yard. Plaintiff stated that he could not do without his slippers. He 6 asked to see a supervisor, but the request was denied. Plaintiff sat down slowly and calmly on the 7 floor, and told the guards, “I am peaceful and I respectfully and peacefully request to speak to a 8 superior.” Plaintiff’s hands were already cuffed behind his back. The guards then yanked 9 Plaintiff’s arms further back and dragged him across the floor, causing pain in Plaintiff’s 10 shoulders. Plaintiff repeated that he was not resisting and that he was peacefully and respectfully 11 requesting to speak to a superior. The guards responded by picking up Plaintiff by the arms and 12 slamming him face-first into the ground. The guards then dug their knees into Plaintiff’s spine 13 and continued to push Plaintiff’s face into the ground until it became difficult for Plaintiff to 14 breathe. The guards hit the alarm and other guards arrived. After the other guards arrived, the 15 guards on top of Plaintiff finally removed their knees from Plaintiff’s spine and got off his back, 16 but not before pushing Plaintiff’s face into the ground and using Plaintiff’s head to help them 17 stand up. Plaintiff was returned to his cell. Once in his cell, Plaintiff was seen by defendant 18 Kelly. Defendant Kelly spoke to Plaintiff rudely and with an attitude. Plaintiff told defendant 19 Kelly that he had pain in his back and face. He twice requested to be seen by a doctor and 20 defendant Kelly denied these requests. Defendant Kelly’s progress notes inaccurately report what 21 happened. Plaintiff eventually spoke with a doctor at another facility and obtained a lower bunk 22 chrono. Due to the assault, Plaintiff has issues with his back, including climbing up to the top 23 bunk; and his depression and anxiety has worsened such that, from May 31, 2021 to April 20, 24 2023, he has not left his cell except to attend showers and canteen and required movements. 25 Plaintiff alleges that defendants Galido and Uribe’s physical abuse violated the Eighth 26 Amendment and constituted assault and battery; that defendants Galido and Uribe’s unclothed 27 body search violated his First Amendment right to be free of retaliation and his Fourteenth 1 declaratory judgment finding that Defendants violated his constitutional rights as detailed above. 2 Plaintiff also seeks compensatory and punitive damages. See generally Dkt. No. 1. 3 C. Dismissal with Leave to Amend 4 The Court dismisses the complaint with leave to amend for the following reasons. 5 The complaint’s allegations that correctional officers dragged Plaintiff across the floor and 6 slammed him face first into the floor state a cognizable claim for use of excessive force in 7 violation of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (core judicial 8 inquiry in considering Eighth Amendment excessive force claim is whether force was applied in 9 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm). 10 However, the complaint does not identify the guards that allegedly used the excessive force, 11 referring only to “the guards.” See, e.g., Dkt. No. 1 at 8-9. The complaint does specify that 12 defendants Galindo and Uribe were on Plaintiff’s back, but it is unclear if they were the guards 13 that also dragged Plaintiff across the floor and slammed him face first into the floor. The Court 14 DISMISSES the excessive force claim with leave to amend to correct this deficiency. See Lopez 15 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court should grant leave to amend unless 16 pleading could not possibly be cured by the allegation of other facts). 17 The complaint does not state a First Amendment retaliation claim. Within the prison 18 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 19 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 20 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 21 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 22 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). The prisoner must 23 show that the type of activity he was engaged in was constitutionally protected, such as exercising 24 right of access to the courts, utilizing the prison grievance process, or threatening to sue. Hines v. 25 Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claim must rest on proof that inter alia 26 prisoner exercised constitutional right); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995) 27 (prisoners may not be retaliated against for exercising right of access to courts); Rhodes, 408 F.3d 1 Entler v. Gregoire, 872 F.3d 1031, 1034, 1038-40 (9th Cir. 2017) (district court erred in finding 2 that prisoner did not state First Amendment retaliation claim for prison’s disciplinary actions 3 against him for making threats of legal action if his grievances were not addressed). Neither 4 requesting to speak to an officer’s supervisor nor questioning an officer’s directives are 5 constitutionally protected activities. The Court DISMISSES the retaliation claim with leave to 6 amend to correct this deficiency, if Plaintiff can truthfully do so. See Lopez, 203 F.3d at 1130. 7 The complaint also does not state a due process claim. The Due Process Clause of the 8 Fourteenth Amendment protects individuals against governmental deprivations of “life, liberty or 9 property,” as those words have been interpreted and given meaning over the life of our republic, 10 without due process of law. Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v. 11 Oregon, 57 F.3d 789, 795 (9th Cir. 1995). The alleged actions and inactions described in the 12 complaint did not deprive Plaintiff of life, liberty, or property. The Court DISMISSES the due 13 process claim with leave to amend to correct this deficiency, if Plaintiff can truthfully do so. See 14 Lopez, 203 F.3d at 1130. 15 The complaint’s allegation that defendant Kelly was rude to Plaintiff and refused 16 Plaintiff’s request to be seen by a doctor fails to state a Eighth Amendment claim for denial of 17 medical care. Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 18 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 19 97, 104 (1976). A determination of “deliberate indifference” involves an examination of two 20 elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response 21 to that need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on 22 other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 23 banc). A “serious” medical need exists if the failure to treat a prisoner’s condition could result in 24 further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d 25 at 1059 (citing Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows 26 that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 27 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In order for deliberate 1 of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. It is unclear how 2 || Plaintiffs pain in his back and face constituted a serious medical need, and why it was necessary 3 || for Plaintiff to be seen by a doctor instead of a nurse. The Court DIMISSES the Eighth 4 || Amendment medical needs claim with leave to amend to correct these deficiencies, if Plaintiff can 5 truthfully do so. See Lopez, 203 F.3d at 1130. 6 CONCLUSION 7 For the reasons set forth above, the Court DISMISSES the complaint with leave to amend. 8 || Within twenty-eight (28) days of the date of this order, Plaintiff shall file an amended complaint 9 || that addresses the identified deficiencies. The amended complaint must include the caption and 10 || civil case number used in this order, Case No. 23-02709 HSG (PR) and the words “AMENDED 11 COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 12 || questions on the form in order for the action to proceed. An amended complaint completely 5 13 replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 14 || 2012). Accordingly, Plaintiff must include in his amended complaint all the claims he wishes to 3 15 present and all of the defendants he wishes to sue, and may not incorporate material from the prior a 16 || complaint by reference. 3 17 Failure to file an amended complaint in accordance with this order in the time provided 18 || will result in dismissal of this action without further notice to Plaintiff. The Clerk shall include 19 || two copies of the court’s complaint form with a copy of this order to Plaintiff. 20 IT IS SO ORDERED. 21 Dated: 7/6/2023 22 Alauprend 5 |p. 73 HAYWOOD S. GILLIAM, JR. United States District Judge 24 25 26 27 28