(PC) Davis v. Perez ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVIN S. DAVIS, ) Case No.: 1:19-cv-01310-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 R. PEREZ, ) ) FINDINGS AND RECOMMENDATION 15 Defendant. ) RECOMMENDING DISMISSAL OF ACTION ) FOR FAILURE TO STATE A COGNIZABLE 16 ) CLAIM FOR RELIEF ) 17 ) [ECF No. 12] 18 Plaintiff Devin S. Davis is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s first amended complaint, filed November 4, 2019. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 27 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 28 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 6 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 7 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 10 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 11 which requires sufficient factual detail to allow the Court to reasonably infer that each named 12 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 13 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 14 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 15 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 16 II. 17 COMPLAINT ALLEGATIONS 18 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the sua 19 sponte screening requirement under 28 U.S.C. § 1915. 20 During early February 2019, when Plaintiff returned from the medication line, correctional 21 officer R. Perez stopped Plaintiff because he was late due to talking to a fellow Muslim inmate who 22 was going home. The previous day, correctional officer Munoz had already the issue and excused 23 Plaintiff’s tardiness. Plaintiff told Perez “it won’t happen again I take responsibility.” The next day, 24 officer Perez rehashed the conversation while officer Munoz was present. Plaintiff responded by 25 stating, “you have a blessed day.” Plaintiff accidentally walked into the wall and officer Perez stated, 26 “you’re a stupid mother.” Plaintiff told her, I will file a 602 [grievance]” and she replied, “I don’t give 27 a fuck.” 28 /// 1 During the month of May 2019, Plaintiff’s cell was searched, by officer Perez and when 2 Plaintiff asked for a cell search slip she stated, “No I can do whatever the fuck I want to, I don’t have 3 to give you shit.” 4 On June 14, 2019, Plaintiff was advised by officer Munoz that she had packed his electronics 5 herself. While Plaintiff was signing the property slip, officer Perez said “ah ha you thought you were 6 taken that,” to which Plaintiff said “leave me alone.” When officer Munoz told Plaintiff to sign the 7 property slip, he stated, “why you won’t just leave me alone?” Munoz started to snicker and laugh. 8 Plaintiff went back to his cell to put his property on the cart, and while leaving the building officer 9 Perez said “bye get the fuck out of my building with your ugly Black terrorist ass.” 10 Plaintiff seeks $60,000 in compensatory damages, and $30,000 in punitive damages. 11 III. 12 DISCUSSION 13 A. Harassment 14 Mere verbal harassment or abuse, including the use of racial epithets, does not violate the 15 Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. 16 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). In addition, threats do not rise to the level of a 17 constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 18 Plaintiff contends that he was subjected to harassment by officer Perez. However, Plaintiff 19 fails to state a cognizable claim based on the alleged statement by officer Perez that Plaintiff was a 20 “stupid mother.” Accordingly, Plaintiff cannot proceed on any claim that he was subjected to verbal 21 harassment and/or abuse. 22 B. Retaliation 23 To state a claim for retaliation in the prison context, a plaintiff must allege 1) that he was engaged 24 in protected conduct; 2) that the defendant took adverse action against the plaintiff; 3) the causal 25 connection between the adverse action and the protected conduct; 4) that the “official’s acts would chill 26 or silence a person of ordinary firmness from future First Amendment activities[;]” and 5) that the 27 retaliatory acts did not advance the legitimate goals of the correctional institution. Watison v. Carter, 28 668 F.3d 1108, 1114 (9th Cir. 2012). To state a cognizable retaliation claim, Plaintiff must establish a 1 nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 2 1153 (E.D. Wash. 2014). 3 Plaintiff has alleged that he stated he would file an inmate appeal reporting the alleged 4 misconduct by officer Perez. Watison, 668 F.3d at 1114 (filing grievances); Schroeder v. McDonald, 5 55 F.3d 454, 461 (9th Cir. 1995) (pursuing civil litigation). However, to state a cognizable claim a 6 plaintiff is required to do more than set forth conclusory statements that actions taken were retaliatory. 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 8 plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “[A] complaint 9 [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line 10 between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 11 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a 12 complaint, a court need not accept a Plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. 13 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 14 not suffice.” Id. (quoting Twombly, 550 U.S. at 555). Therefore, to show that the adverse action was 15 taken because of Plaintiff’s protected conduct, there must be allegations to establish a causal connection 16 between the retaliatory conduct and Plaintiff’s subsequent injury. Capp v. County of San Diego, No. 17 18-55119, at *11-12 (9th Cir. Oct. 4, 2019). 18 The mere fact that Plaintiff’s cell was searched in May 2019 fails to give rise to a claim for 19 retaliation. There are no sufficient to demonstrate that Plaintiff’s cell was searched in retaliation for 20 his statement three months prior that he was going to file an inmate grievance. Thus, Plaintiff has not 21 sufficiently linked Perez’s cell search to any protected conduct. See Rhodes v. Robinson, 408 F.3d 22 559, 567-68 (9th Cir. 2005). Accordingly, Plaintiff fails to state a cognizable retaliation claim. 23 C. Due Process-Cell Search 24 To the extent Plaintiff contends his due process rights were violated because he was not 25 provided a property receipt, he fails to state a cognizable claim. 26 Title 15 of the California Code of Regulations, section 3287, pertains to “Cell, Property, and 27 Body Inspection.” This section provides that “[t]he purpose of such inspections is to fix responsibility 28 or the absence of responsibility for security and safety hazards and serious contraband found in the 1 cell, room or dormitory area. Id. Under section 3287(a)(1), a correctional officer charged with 2 conducting the inspection is authorized to search “occupied cells, rooms and dormitory areas, 3 including fixtures and lockers, and any personal and state-issued property of the occupant … on an 4 infrequent and unscheduled basis.” Cal. Code Regs. tit. 15, § 3287(a)(1). The regulations further 5 provide that: 6 The inmate will be given a written notice of any item(s) of personal and authorized state-issued property removed from his or her quarters during an inspection and the 7 disposition made of such property. The notice will also list any contraband picked up or any breach of security noted during the inspection, and the follow-up action intended 8 by the inspecting officer. 9 Id. at § 3287(a)(4). 10 As discussed above, the Due Process Clause guarantees only those protections outlined in 11 Wolff; it does not mandate that prisons comply with their own more generous rules. See Walker, 14 12 F.3d at 1419-1420; accord Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989) (prison’s failure to 13 meet its own guideline requiring hearing to be held in eight days of charge would not alone constitute 14 denial of due process). Thus, the mere fact that Defendant Perez may not have issued a property 15 receipt (as outlined by § 3287) does not establish that Plaintiff was denied due process of law. 16 D. Racial Discrimination-Equal Protection Claim 17 The Equal Protection Clause requires that persons who are similarly situated be treated alike. 18 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California 19 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 20 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff 21 must show that Defendants intentionally discriminated against him based on his membership in a 22 protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 23 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 24 “Intentional discrimination means that a defendant acted at least in part because of a plaintiff’s 25 protected status.” Serrano v. Francis, 473 U.S. at 1082 (citing Maynard v. City of San Jose, 37 F.3d 26 1396, 1404 (9th Cir. 1994) (emphasis in original).) 27 28 1 It appears that Plaintiff contends that Defendant Perez’s statement to him to “get the fuck out 2 of my building with your ugly Black terrorist ass,” subjected him to racial discrimination in violation 3 of the Equal Protection Clause. However, Plaintiff’s allegations are insufficient to show that Perez 4 treated Plaintiff in a manner inconsistent with other similarly situated inmates and that Perez “acted 5 with an intent or purpose to discriminate against” Plaintiff based upon his race or any other grounds. 6 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Thus, Perez’s statement in reference to his 7 race, even if construed a verbal racial harassment is not sufficient to state a claim under the Equal 8 Protection Clause. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (quoting Oltarewski v. 9 Ruggiero, 830 F.2d at 139)) (“[V]erbal harassment or abuse … is not sufficient to state a constitutional 10 deprivation under 42 U.S.C. § 1983.”). Furthermore, Plaintiff fails to allege with any particularity in 11 what ways he was treated in a racially discriminatory manner. Accordingly, Plaintiff fails to state a 12 cognizable claim under the Equal Protection Clause. 13 IV. 14 CONCLUSION AND RECOMMENDATION 15 For the reasons discussed herein, Plaintiff fails to state a cognizable constitutional claim for 16 relief. Plaintiff was previously notified of the applicable legal standards and the deficiencies in his 17 pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical 18 to the original complaint. Based upon the allegations in Plaintiff’s original and first amended 19 complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would 20 support a constitutional claim for relief, and further amendment would be futile. See Hartmann v. 21 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend when 22 amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds that 23 further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. 24 Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). 25 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 26 Judge to this action. 27 /// 28 /// 1 Further, it is HEREBY RECOMMENDED that: 2 1. The instant action be dismissed for failure to state a cognizable claim for relief; and 3 2. The Clerk of Court be directed to terminate this action. 4 These Findings and Recommendations will be submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) 6 || days after being served with these Findings and Recommendations, Plaintiff may file written 7 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 8 || Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 9 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 10 || 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 ||IT IS SO ORDERED. Al (re |! Dated: _ November 6, 2019 OF ; 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28