(PC) Evans v. Struve ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID EVANS, No. 2: 19-cv-1376 JAM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. STRUVE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the reasons stated herein, the undersigned recommends that plaintiff’s 19 claim alleging that defendants Gonzalez, Dingfelder, Richardson, Calderon, Valice, Sidebotham 20 and McCarval violated the Eighth Amendment by filing reports falsely claiming that plaintiff 21 resisted defendant Struve be dismissed for failing to state a potentially colorable claim for relief. 22 See 28 U.S.C. § 1915(e)(2) (notwithstanding any filing fee, the court shall dismiss case at any 23 time the court determines that the action fails to state a claim on which relief may be granted). 24 In the August 2, 2019 order directing service of defendants, the undersigned found that 25 plaintiff’s complaint stated the following potentially colorable claims for relief: 1) defendant 26 Struve used excessive force against plaintiff on May 23, 2018; 2) defendants Gonzalez, 27 Dingfelder, Richardson, Calderon, Valice, Sidebotham and McCarval witnessed the excessive 28 force and failed to intervene; and 3) all defendants later falsely alleged, apparently in reports 1 prepared after the alleged excessive force incident, that plaintiff resisted defendant Struve.1 (ECF 2 No. 6 at 1-2.) 3 Based on the case law cited herein, the undersigned finds that plaintiff’s claim that 4 defendants Gonzales, Dingfelder, Richardson, Calderon, Valice, Sidebotham and McCarval 5 violated the Eighth Amendment by filing reports falsely stating that plaintiff resisted defendant 6 Struve does not state a potentially colorable claim for relief. See Villegas v. Schulteis, 2009 WL 7 3157519, at *6 (E.D. Cal. Sept. 28, 2009) (“While Walker's actions in submitting a false report 8 and covering up the incident to protect his fellow correctional officers are wrongful, they do not 9 rise to the level of an Eighth Amendment violation. Walker is only liable for his actions or 10 inactions that could be said to have caused the attack to happen. Walker’s actions in filing a false 11 report cannot be said to have caused the attack to happen because by then the attack had already 12 occurred.”); see also Poe v. Huckaby, 2010 WL 1663141, at *6 (E.D. Cal. April 22, 2010) 13 (dismissing without leave to amend claim that correctional officers violated the Eighth 14 Amendment by filing a false report regarding an excessive force incident, because the “filing of 15 the false reports occurred after the attacks” and therefore, the “false reports cannot be said to have 16 caused or contributed to the unconstitutional use of excessive force”). 17 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s claim alleging that 18 defendants Gonzales, Dingfelder, Richardson, Calderon, Valice, Sidebotham and McCarval 19 violated the Eighth Amendment by filing reports falsely stating that plaintiff resisted defendant 20 Struve be dismissed for failing to state a potentially colorable claim for relief. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 1 In the complaint, plaintiff alleges, in relevant part, “Defendants D. Gonzales, L. Dingfelder, S. 26 Richardson, D. Calderon, Valice, Sidebotham and C. McCarval were all in the area of the events 27 and witnessed the brutality that Struve had imposed on the plaintiff and, simply observed his conduct and made attempts to cover-up for Struves unlawful actions by alleging plaintiff had 28 resisted...” (ECF No. 1 at 11.) 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 | objections shall be filed and served within fourteen days after service of the objections. The 3 | parties are advised that failure to file objections within the specified time may waive the right to 4 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: November 11, 2020 Fens Arn 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 8 9 Evans1376.dis 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28