(PC) Dillingham v. Garcia ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DILLINGHAM, 1:19-cv-00461-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENATIONS, RECOMMENDING THAT THIS CASE 13 vs. PROCEED AGAINST DEFENDANT J. GARCIA FOR USE OF EXCESSIVE 14 J. GARCIA, et al., FORCE, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FOR 15 Defendants. FAILURE TO STATE A CLAIM 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17 18 19 I. BACKGROUND 20 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2019, Plaintiff filed the 22 Complaint commencing this action. (ECF No. 1.) On June 1, 2020, the court issued a screening 23 order requiring Plaintiff to either (1) file an amended complaint not exceeding 25 pages, or (2) 24 notify the court of his willingness to proceed only with the excessive force claim against 25 defendant J. Garcia and the medical claims against defendants Harmon and Dozer found 26 cognizable by the court. (ECF No. 19.) On August 27, 2020, Plaintiff filed the First Amended 27 Complaint, which was 41 pages in length. (ECF No. 31.) On August 30, 2020, the court issued 28 an order striking the First Amended Complaint for Plaintiff’s failure to comply with the screening 1 order and granted Plaintiff 30 days in which to file a Second Amended Complaint not exceeding 2 25 pages. (ECF No. 32.) On September 8, 2020, Plaintiff filed the Second Amended Complaint 3 that is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 34.) 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 10 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 11 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 12 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 18 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 19 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 20 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 21 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 22 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 23 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 24 plausibility standard. Id. 25 III. SUMMARY OF SECOND AMENDED COMPLAINT 26 Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano, 27 California, in the custody of the California Department of Corrections and Rehabilitation 28 (CDCR), where the events at issue in the Second Amended Complaint allegedly occurred. 1 Plaintiff names as defendants Correctional Officer (C/O) J. Garcia, C/O J. Harmon, C/O D. 2 Dozer, Sergeant B. Stane, Lieutenant A. Sotelo, Warden C. Pfeiffer, C/O F. Garcia (father of 3 C/O J. Garcia), S. Kernan (CDCR Secretary), R. Soto (inmate), and Ralph Diaz (CDCR 4 Secretary) (collectively, “Defendants”). 5 Plaintiff’s allegations follow: 6 Plaintiff is a mentally impaired ADA inmate. On June 7, 2018, Plaintiff was a new arrival 7 at KVSP and was assigned housing in Facility C Building C4-C-Sec., where dangerous Security 8 Threat Groups (STG) – Radical white, Mexican, and Negro gang members -- are housed. This 9 is the most violent yard in the most dangerous prison in California. 10 On June 8, 2018, two convicts came to Plaintiff’s cell stating, “We are STG gang 11 members.” (ECF No. 34 at 3:15.)1 They were Negroes and told Plaintiff there is a convict in our 12 C-section, R. Soto, who is going around telling other gang members that Plaintiff is in prison for 13 a sensitive commitment offense, and Soto was carrying out an agreement with defendant F. 14 Garcia to cause Plaintiff’s murder. The two convicts said that Soto was telling gang members 15 that he and Plaintiff were both at the California Substance Abuse Treatment Facility (SATF) in 16 Corcoran, California, in 2016-2017, and an officer, F. Garcia, gave Soto and other convicts 17 Plaintiff’s private information CDCR 128-G, which recorded Plaintiff’s sensitive commitment 18 offense. One of the two gang members said they would murder and rape Plaintiff if he did not 19 show them his CDCR 128-G Classification Chrono when he came out of the cell. The gang 20 member said that prison guards are going to watch because the officers know it’s going down 21 because Officer J. Harmon is telling Building 4 convicts about Plaintiff’s sensitive offense. 22 Plaintiff was terrified because F. Garcia gave his co-conspirator the weapon to cause Plaintiff’s 23 murder between February 28, 2017 and March 3, 2017. F. Garcia was alerted to Plaintiff’s 24 “SCO” offense [sex offender], which gives Plaintiff an increased risk of being targeted for 25 26 1 All page numbers cited herein are those assigned by the court's CM/ECF system and not based 27 on the Plaintiff’s pagination of the Complaint. 28 1 murder by prison guards and convicts. Gang members came to Plaintiff’s cell and threatened to 2 murder Plaintiff because of his sensitive commitment offense. 3 On June 12, 2018, defendant Harmon and the control officer informed Plaintiff he was 4 paged for a medical appointment. Around 9:40am, the booth officer opened Plaintiff’s cell door 5 for the appointment. Plaintiff was informed that morning by Harmon, prior to inmates being 6 released for medication pill line, that there could not be any Facility C inmate recreation yard 7 program after Building C4 inmates returned from walking to pill line, i.e., no inmate movement 8 out of their cells. So Plaintiff felt he could leave his cell and receive protection. 9 Plaintiff reported to defendant Harmon in his red paper orientation jumpsuit, lime green 10 mobility impaired disability vest, and mobility aid cane. Plaintiff asked why it took so long to 11 get out of the cell for this medical appointment. Harmon replied, “You will find out soon 12 enough.” (ECF No. 34 at 10:18-19.) Plaintiff alerted defendant Harmon about his safety concerns 13 because of the threats. Plaintiff asked Harmon to protect him by placing waist chain handcuffs 14 on Plaintiff and providing a safety escort out of the building, through the yard, and to Sgt. Stane’s 15 program administration building for placement in a secure holding cage. Defendant was to call 16 Sgt. Stane ahead of time to clear the yard of all inmates before Harmon escorted Plaintiff to the 17 Program Office. But defendant Harmon said he wasn’t escorting Plaintiff in handcuffs anywhere. 18 He told Plaintiff to find a safe way to the medical building on his own and to “get out my office.” 19 (ECF No. 34 at 11:8.) Plaintiff felt that that he, a Negro, was being treated differently than 20 others similarly situated, that is, non-classified (white, Mexican) sensitive commitment offender 21 gang members. 22 Upon exiting Building C-4, Plaintiff was excluded from participation in security 23 protection services. Plaintiff saw defendant J. Garcia escorting ten or more unhandcuffed radical 24 extremist STG gang members of different races, returning from allegedly “C-over-C” 2 punitive 25 solitary recreation. Defendant J. Garcia beckoned to an unhandcuffed “C-over-C” STG gang 26 member, defendant Soto. Defendant J. Garcia stood by and watched sadistically as he and Soto 27 28 2 According to Plaintiff, “C-over-C” convicts pose a substantial risk to the safety of other inmates and are restricted from having physical contact with non-C-status inmates. 1 identified Plaintiff. Plaintiff heard J. Garcia and Soto express agreement that Plaintiff is the 2 inmate for whom J. Garcia solicited Soto to conspire to murder, to silence Plaintiff, intimidate a 3 witness in retaliation in a federal lawsuit. Plaintiff heard J. Garcia direct his co-conspirator Soto 4 to attack Plaintiff, a 57-year old disabled dependent painfully hobbling through the recreation 5 yard trying to reach safety at the Program Office a hundred or more yards away before defendant 6 Soto could reach him. Soto struck Plaintiff from behind. Plaintiff heard Soto during the attack 7 exclaim, “This is from F. Garcia his family J. Garcia, i.e. son/brother for Plaintiff being an 8 informant, snitch, sensitive commitment offense offender.” (ECF No. 34 at 12:7-9.) 9 Soto severed Plaintiff’s right bicep tendon causing excruciating pain from fist blows 10 down on Plaintiff’s right arm, his bicep seemingly rendered paralyzed. Soto bludgeoned Plaintiff 11 across the back of the neck severely injuring C3-C7 cervical discs and crushing down on 12 Plaintiff’s spinal cord column causing severe pain, affecting Plaintiff’s daily mobility. Plaintiff 13 suffered three severe tears on his right shoulder, causing severe pain. J. Garcia caused Soto to 14 reinjure Plaintiff’s right hip, causing severe pain. All Plaintiff could do was hold on to his cane 15 to prevent Soto from snatching it out of Plaintiff’s left hand, as Soto exclaimed, “Let go of the 16 cane, Ni**er, so I can beat you to death with it.” (ECF No. 34 at 13:1.) Plaintiff was struck on 17 the chin and yanked by his bicep to the ground while trying to shield his face with his left arm. 18 At no time did Plaintiff strike the assailant with his cane or his fist, even as defendant J. Garcia 19 told Soto to pummel Plaintiff. 20 Defendant J. Garcia finally called off the attack. Plaintiff lay prone on the ground 21 partially unconscious. Defendant J. Garcia sadistically threw a chemical pepper spray grenade 22 at Plaintiff which exploded on the middle part of Plaintiff’s leg causing second and third degree 23 burns six to seven inches long causing extreme pain for over two months. Subsequently, 24 defendant J. Garcia pushed his alarm. Emergency medical staff responded with a wheelchair. 25 Defendant J. Garcia picked Plaintiff up by the right bicep, sadistically throwing Plaintiff into the 26 wheelchair causing excruciating pain. J. Garcia mockingly exclaimed, “Dillingham wanted 27 protection, look at him now,” and Garcia and his Mexican responding guards humiliated Plaintiff, 28 laughing. (ECF No. 34 at 13:25-26.) 1 Plaintiff was taken by wheelchair to the C Facility infirmary where two nurses told 2 Plaintiff, “The attack trauma to your right bicep possibly is a severed bicep tendon rupture, being 3 why it’s disfigured in comparison to your left bicep.” (ECF No. 34 at 14:1-4.) Plaintiff told the 4 nurses about the attack against him and complained of severe pain. Neither of the nurses wrote 5 down anything on their individual CDCR 7219 Medical Reports of Injury regarding Plaintiff’s 6 injury and pain. Plaintiff thought either the nurses were intimidated by the numerous prison 7 guards camped out in the infirmary, or it was business as usual. The nurses only cleaned 8 Plaintiff’s burn on his left leg and put a bandage on it. They refused to summon prison emergency 9 medical care for Plaintiff’s serious injuries. California Corrections Health Care Services failed 10 to surgically repair Plaintiff’s bicep, three tears in his right shoulder, or C3-C7 ruptured cervical 11 discs. In retaliation for Plaintiff’s litigation against F. Garcia, J. Garcia conspired with his father 12 and brother. J. Garcia’s fraudulent evidence report record charged Plaintiff with battery on an 13 inmate with a deadly weapon, CDC 115, resulting in 365 days of retaliation and false 14 imprisonment. 15 When Plaintiff was released from Ad-Seg he told Warden Pfeiffer that his sensitive 16 commitment offense was the cause of R. Soto’s attempted murder of Plaintiff and gang member 17 threats to murder Plaintiff. But Warden Pfeiffer disregarded it. 18 C Facility prison guards, defendants J. Harmon, J. Garcia, et al., conspired with C Facility 19 gang members disclosing to them Plaintiff’s sensitive commitment offense, facilitating Plaintiff’s 20 murder. Thus, Plaintiff would be in imminent substantial danger of being targeted again for great 21 bodily injury if Plaintiff remained at KVSP, or was sent back to Facility C. 22 Defendants C. Pfeiffer and Ad-seg counselor Gaery [not a defendant] started 23 collaborating and told the recorder staff not to record any archives about what Plaintiff just 24 testified to in a CDCR 128-G Institutional Classification Hearing chrono. Warden Pfeiffer 25 disregarded the aforementioned information and ordered Plaintiff rehoused back on Facility 26 Lower C Building C-4, double-celled. Convicts began to make terrorist threats to murder 27 Plaintiff once he came out of the cell for the same reasons complained of to defendants J. Harmon 28 and Pfeiffer. 1 On June 27, 2018, Plaintiff alerted defendants Sgt. B. Stane and Facility C Program 2 Administrative staff about unidentifiable STG gang members housed in Building C4-C-Sec still 3 making terrorist threats to murder Plaintiff because of his sensitive commitment offense. Plaintiff 4 alerted defendants Sgt. Stane and Pfeiffer that double-celling Plaintiff is a risk to Plaintiff’s safety 5 and mental health welfare based on his severe PTSD diagnosed by Psychologist R. Price. Panic, 6 anxiety and paranoia, dangerous attacks, audio hallucination flashbacks of prior January 18, 2013 7 in cell (covered up by SVSP staff), stabbing victimization of Plaintiff which initially caused 8 Psychologist Sanders to order Plaintiff single-celled in February 2013, coupled with the assailant 9 exclaiming, “This is for being a snitch, informant, sensitive commitment offense offender.” 10 (ECF No. 34 at 16:12.) Plaintiff was single-celled from February 2013 until August 8, 2017, 11 when Psychologist Crawle ill-advisedly revoked Plaintiff’s single cell status. Plaintiff further 12 alerted defendants Sgt. Stane and Pfeiffer that ever since his single-cell “S” suffix was taken, 13 Plaintiff has refused to willingly accept all cells the state has assigned, but for past trauma on 14 January 18, 2013, PTSD flashbacks resulting in the state filing over 8 or more CDC 115 Rules 15 Violation Reports taking 90 days of good time credits for each, which Plaintiff cannot get back, 16 thus extending his sentence. Subsequently, Sgt. Stane responded to Plaintiff’s imminent danger 17 risk, directed defendant J. Harmon to conspire and cause a conflict in Building C4 in Plaintiff’s 18 assigned cell while Plaintiff was being interviewed by Sgt. Stane in the Facility C program 19 administration building, unbeknownst to Plaintiff. 20 Treating Plaintiff’s class group differently than other similarly situated, non-classified 21 sensitive commitment offense offenders: white, Mexican, et al., gang members. Defendant Stane 22 further responded to being alerted, ordered Plaintiff to remain double-celled in Building C4 and 23 provide Plaintiff’s own safety, security, and protection, and once Plaintiff gets the names and cell 24 numbers of the radical extremist STG SNY gang members making terrorist threats to murder 25 Plaintiff on sight, then provide Sgt. Stane and Pfeiffer their names and cell numbers. Thus, 26 Plaintiff refused protective custody. 27 Defendant Stane’s response inflicted severe emotional, psychological mental distress, 28 anxiety, terror, mental pain, and paranoia in Plaintiff. As defendant D. Dozer was forcing 1 Plaintiff back to imminent danger Building C4, as Plaintiff got closer to his assigned cell, Plaintiff 2 saw there was a 280-pound big Black inmate in the cell. The sight of the convict and 3 circumstances of how Sgt. Stane and Harmon caused the cell move caused Plaintiff to think they 4 were once again facilitating to cause Plaintiff’s murder and intentionally inflicting pain and 5 terror. Plaintiff alerted defendants Dozer and Harmon that the convict in the cell was triggering 6 a PTSD post traumatic flash back, feeling panic and terror, triggering homicidal ideations toward 7 the convict in the cell. Plaintiff was suicidal and became visibly distressed, requested both 8 defendants to summon mental health providers for evaluation and treatment. Defendant Dozer 9 responded to Plaintiff’s distress and exclaimed, as Plaintiff lay in a panic fetal position on the 10 floor of the day room, “We’re not having none of that, you’re going in cell 103 to get what your 11 kind got coming,” i.e., sensitive commitment offense offender. (ECF No. 34 at 18:3-4.) 12 Defendant Harmon responded by exclaiming, “You’re not getting away this time,” intimating to 13 Plaintiff that defendant Harmon was an active manipulator of the June 12, 2018 attempted murder 14 incident, referencing his malfeasance based on Plaintiff’s personal knowledge. (ECF No. 34 at 15 18:7.) 16 Both defendants responded to Plaintiff’s plight by intentionally treating Plaintiff’s class 17 group, sensitive commitment offense offender (or Plaintiff’s class of one) different than others 18 similarly situated (i.e., non-sensitive commitment offense inmates exclaiming suicidal medical 19 mental-health care needs. Non-Black, White, Mexican, STG SNY gang member) based on 20 Plaintiff’s regretful membership in protected class groups. Defendants humiliatingly dragged 21 Plaintiff into the cell, using unreasonable force, had the door closed inflicting emotional distress, 22 terror of instant and unexpected death, and mental anguish. 23 Plaintiff was discriminated against because no one summoned a mental health provider 24 for suicide evaluation or other treatment for Plaintiff. Plaintiff was intentionally abandoned 25 without a rational relationship to a legitimate state purpose. Thus, Plaintiff was excluded from 26 participation in and access to state custodial suicide protection, prevention, safety, security policy 27 protocol benefits and activities, based on Plaintiff’s mental impairment disabilities, membership 28 /// 1 in a sensitive commitment offense group, color, African American Blackfoot Indian race, pro se, 2 illiterate, and Armstrong v. Davis class group status. 3 While in the cell, inmate Williams questioned Plaintiff about his incarceration crime and 4 induced a severe PTSD panic attack, black out, and loss of consciousness. Upon gaining 5 consciousness, Plaintiff felt irregular anus pain symptoms (PREA)3 from potential sexual contact. 6 This PREA incident inflicted severe mental pain, humiliation, fear of contracting AIDS, recurring 7 nightmares and images of unwanted sexual acts. On June 28, 2018, Plaintiff alerted Psychologist 8 Beach about the traumatic PREA incident. Defendants failed to protect Plaintiff from cruel and 9 unusual punishment by providing other inmates with Plaintiff’s commitment offense 10 information, soliciting co-conspirators and agreeing to conspire to murder Plaintiff. These 11 actions were by defendant F. Garcia and co-conspirators R. Soto and J. Garcia. 12 Defendants Sgt. Stane, Warden Pfeiffer, and Harmon caused risks to Plaintiff by double- 13 celling him. Defendants Dozer and Harmon failed to summon medical and mental health 14 providers for suicide evaluation, out of retaliation. Defendants F. Garcia, R. Soto, and J. Garcia 15 violated the hate crime statute Penal Code § 422.6(a), Bane Federal Civil Rights Statute § 52.1, 16 and the Eighth and Fourteenth Amendments. 17 Plaintiff seeks monetary damages including punitive damages, injunctive relief, costs of 18 suit, attorney fees, and appointment of counsel. 19 IV. PLAINTIFF’S CLAIMS 20 The Civil Rights Act under which this action was filed provides: 21 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 22 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 23 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 24 42 U.S.C. § 1983. 25 [Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method 26 for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 27 28 3 Prison Rape Elimination Act. 1 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston 2 Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 3 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 4 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 5 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 6 federal Constitution, Section 1983 offers no redress.” Id. 7 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 8 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 9 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 10 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 11 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 12 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 13 which he is legally required to do that causes the deprivation of which complaint is made.’” 14 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 15 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 16 established when an official sets in motion a ‘series of acts by others which the actor knows or 17 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 18 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 19 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 20 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 21 1026 (9th Cir. 2008). 22 A. Defendant Soto and Other Inmates 23 In order for individual defendants to be held personally liable under 42 U.S.C. § 1983, 24 they must have acted under the color of state law. Jensen v. Lane Cty., 222 F.3d 570 (9th Cir. 25 2000). “The traditional definition of acting under color of state law requires that the defendant 26 in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only 27 because the wrongdoer is clothed with the authority of state law.’” Paeste v. Gov’t of Guam, 798 28 F.3d 1228, 1238 (9th Cir. 2015) (citing West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 1 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 2 1368 (1941)). In order to be considered “state action,” for purposes of § 1983 . . . the court must 3 find a sufficiently close nexus between the state and the private actor so that the action of the 4 latter may be fairly treated as that of the State itself. 42 U.S.C. § 1983. Jensen v. Lane Cty., 222 5 F.3d 570 (9th Cir. 2000). 6 Plaintiff names inmate Ramon Soto as a defendant in this action, alleging that Soto 7 assaulted him. He also refers to two unidentifiable inmates (STG gang members) as defendants. 8 Plaintiff cannot succeed in stating a claim against other inmates in this § 1983 case because 9 inmates are not state actors. Therefore, Ramon Soto and the two unnamed inmates must be 10 dismissed as defendants from this case. 11 B. Excessive Force -- Eighth Amendment Claim 12 “The objective component of an Eighth Amendment claim is . . . contextual and 13 responsive to contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) 14 (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause 15 harm always violates contemporary standards of decency, regardless of whether or not significant 16 injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth 17 Amendment excessive force standard examines de minimis uses of force, not de minimis 18 injuries)). “[W]henever prison officials stand accused of using excessive physical force in 19 violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether 20 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 21 sadistically to cause harm.” Id. at 7. “In determining whether the use of force was wanton and 22 unnecessary, it may also be proper to evaluate the need for application of force, the relationship 23 between that need and the amount of force used, the threat reasonably perceived by the 24 responsible officials, and any efforts made to temper the severity of a forceful response.” Id. 25 (internal quotation marks and citations omitted). “The absence of serious injury is . . . relevant 26 to the Eighth Amendment inquiry, but does not end it.” Id. 27 /// 28 1 The court finds that Plaintiff states an excessive force claim against defendant J. Garcia 2 for both the alleged excessive use of a pepper spray grenade, and for allegedly instigating and 3 directing the attack on Plaintiff by inmate Soto. 4 C. Americans with Disabilities Act (ADA) Claim 5 To the extent that Plaintiff seeks to bring an ADA claim, Plaintiff fails to state a claim. 6 “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified 7 individual with a disability; (2) [he] was excluded from participation in or otherwise 8 discriminated against with regard to a public entity’s services, programs, or activities; and (3) 9 such exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 10 1039, 1052 (9th Cir. 2002). Monetary damages are not available under Title II of the ADA absent 11 a showing of discriminatory intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 12 1998). To show discriminatory intent, a plaintiff must establish deliberate indifference by the 13 public entity. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 14 Plaintiff has sufficiently established that he is disabled within the definition of the ADA. 15 However, Plaintiff has not alleged facts showing that he was denied a specific service, program, 16 or activity based upon that disability, nor has he alleged facts showing discriminatory intent in 17 excluding Plaintiff from participation in a program, service, or activity. Therefore, Plaintiff fails 18 to state a claim for violation of the ADA. 19 D. Medical and Mental Health Care – Eighth Amendment Claim 20 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 21 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 22 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 23 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 24 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 25 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 26 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 27 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 28 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 1 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 2 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 3 may be manifested “when prison officials deny, delay or intentionally interfere with medical 4 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 5 This principle extends to an inmate’s mental-health-care needs. Smith v. Jenkins, 919 6 F.2d 90, 92–93 (8th Cir. 1990). Deliberate indifference by prison personnel to an inmate’s 7 serious mental-health-care-needs violates the inmate's Eighth Amendment right to be free from 8 cruel and unusual punishment. Id. Deliberate indifference is shown by “a purposeful act or 9 failure to respond to a prisoner’s pain or possible medical need, and harm caused by the 10 indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a 11 claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a 12 claim that the named defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff's] 13 health....” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). 14 In applying this standard, the Ninth Circuit has held that before it can be said that a 15 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 16 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 17 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing 18 Estelle, 429 U.S. at 105–06). 19 Plaintiff alleges that medical care and mental health care were not summoned for him 20 when needed, but Plaintiff has not named which defendant acted against him or alleged facts 21 showing that any of the defendants knew he had a serious medical or mental care need and 22 ignored it or acted unreasonably under the circumstances. 23 Therefore, Plaintiff fails to state a cognizable claim for inadequate medical care under the 24 Eighth Amendment. 25 E. Equal Protection Clause 26 The Equal Protection Clause requires the State to treat all similarly situated people 27 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 28 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 1 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 2 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 3 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 4 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 5 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 6 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 7 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 8 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 9 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 10 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 11 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 12 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated 13 against on the basis of his membership in a protected class, or that he was intentionally treated 14 differently than other similarly situated inmates without a rational relationship to a legitimate 15 state purpose. Therefore, Plaintiff fails to state a claim for relief for violation of his right to equal 16 protection. 17 F. Failure to Protect 18 The Eighth Amendment protects prisoners from inhumane methods of punishment and 19 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 20 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 21 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer, 511 22 U.S. at 832-33 (internal citations and quotations omitted). Prison officials have a duty to take 23 reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 24 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks by 25 other inmates may rise to the level of an Eighth Amendment violation where prison officials 26 know of and disregard a substantial risk of serious harm to the plaintiff. E.g., Farmer, 511 U.S. 27 at 847; Hearns, 413 F.3d at 1040. 28 /// 1 To establish a violation of this duty, the prisoner must establish that prison officials were 2 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 3 question under the Eighth Amendment is whether prison officials, acting with deliberate 4 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 5 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 6 explained that “deliberate indifference entails something more than mere negligence . . . [but] 7 something less than acts or omissions for the very purpose of causing harm or with the knowledge 8 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” 9 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is 10 aware.” Id. at 836-37. 11 The deliberate indifference standard involves both an objective and a subjective prong. 12 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 13 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 14 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 15 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in 16 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. 17 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 18 Plaintiff alleges that he heard defendant J. Garcia direct inmate Soto to attack Plaintiff, 19 and Soto attacked Plaintiff exclaiming, “This is from F. Garcia, his family, J. Garcia, i.e., 20 son/brother, for Plaintiff being an informant, snitch, sensitive commitment offense offender.” 21 (ECF No. 34 at 12:7-9.) Based on these allegations, it appears that defendant J. Garcia failed to 22 protect Plaintiff from an attack by inmate Soto. However, J. Garcia’s conduct -- directing inmate 23 Soto to attack Plaintiff -- is more analogous to an act of excessive force than of failure to protect 24 Plaintiff. Moreover, J. Garcia used inmate Soto as a weapon to use excessive force against 25 Plaintiff. Although an excessive force claim against defendant J. Garcia may be a better fit in 26 this circumstance, Plaintiff’s allegations are sufficient to also state a cognizable claim against 27 defendant J. Garcia for failure to protect him under the Eighth Amendment. 28 G. Retaliation 1 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 2 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 3 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 4 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 5 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 6 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 7 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 8 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 9 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 10 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 11 Although Plaintiff claims that he was retaliated against, he has failed to demonstrate a 12 causal nexus between the alleged retaliation and any constitutionally protected activity, showing 13 that the retaliatory act was done because of the protected activity. Accordingly, Plaintiff fails to 14 state a cognizable retaliation claim. 15 H. Conspiracy 16 Plaintiff alleges that defendants J. Garcia, F. Garcia, and inmate Soto conspired together 17 to murder Plaintiff; that defendants Harmon, J. Garcia, and C-Facility gang members conspired 18 to disclose Plaintiff’s sensitive commitment offense in an attempt to facilitate Plaintiff’s murder; 19 and that defendant Sgt. Stane directed defendant Harmon to conspire and cause a conflict in Bldg. 20 C-4 in Plaintiff’s cell while Plaintiff was being interviewed by Sgt. Stane. 21 Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to 22 violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal 23 quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 24 1539, 1540-41 (9th Cir. 1989)), and that an “‘actual deprivation of his constitutional rights 25 resulted from the alleged conspiracy,’” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 26 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) ). “‘To be liable, 27 each participant in the conspiracy need not know the exact details of the plan, but each participant 28 must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting 1 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity 2 to show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights. 3 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 4 866 F.2d at 1126). The mere statement that defendants “conspired” or acted “in retaliation” is 5 not sufficient to state a claim. “Threadbare recitals of the elements of a cause of action, supported 6 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 7 U.S. at 555). 8 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state 9 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of 10 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted) 11 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th 12 Cir. 1989) (“To state a claim for conspiracy to violate one’s constitutional rights under section 13 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 14 (citation omitted) ). 15 Plaintiff’s allegations of conspiracy under § 1983 fail to state a claim because his 16 allegations are conclusory and merely speculative. Though he uses phrases like “agreement” and 17 “conspiracy,” he does not provide specific facts showing that any of the defendants or inmates 18 had an agreement to violate Plaintiff’s constitutional rights. Plaintiff’s claim that defendants F. 19 Garcia and J. Garcia conspired with inmate Soto to murder Plaintiff is particularly tenuous since 20 F Garcia and J. Garcia worked at different prisons. Therefore, Plaintiff fails to state a claim for 21 conspiracy. 22 I. State Law Claims 23 Plaintiff brings claims for violation of the hate crime statute Penal Code § 422.6(a) and 24 the Bane Federal Civil Rights Statute § 52.1. These are state law claims. Violation of state tort 25 law, state regulations, rules and policies of the CDCR, or other state law is not sufficient to state 26 a claim for relief under § 1983. Section 1983 does not provide a cause of action for violations of 27 state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a 28 claim under § 1983, there must be a deprivation of federal constitutional or statutory rights. See 1 Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th 2 Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). Although the court may 3 exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable 4 claim for relief under federal law. See 28 U.S.C. § 1367. 5 Plaintiff alleges in the Second Amended Complaint that he has complied with the 6 Government Claims Act, which requires exhaustion of state law claims with California’s Victim 7 Compensation and Government Claims Board. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 8 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 9 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 10 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim- 11 Panahi, 839 F.2d at 627. Plaintiff is required to specifically allege compliance in his complaint. 12 Id. Plaintiff states that “on December 11, 2018, within six months of this instant Complaint 13 claims incident i.e., June 7, 2018 & June 27, 2018, (& continuing violations),” mailed a claim to 14 the Victim’s Compensation and Govt. Claims Board, “covering most of the instant Federal 15 Complaint State Law claims.” (ECF No. 34 at 19.) Plaintiff has attached a copy of his claim to 16 the First Amended Complaint filed on August 27, 2020. (ECF No. 31 at 24-26.) However, the 17 California Dept. of General Services letter to Plaintiff dated April 4, 2019, advised Plaintiff that 18 his claim, submitted on January 2, 2019, was denied because he submitted a late claim failing to 19 meet the requirements of Government Code section 911.6. (Id.) Plaintiff was advised: 20 Your recourse, should you wish to pursue the matter further, is to file a petition in 21 court for relief from the requirement of Government Code Section 945.4. You 22 will have six months from the date of this notice to file a petition. If the courts 23 grant the petition, you will have 30 days from the date the petition is granted to 24 file suit on the cause of action to which this claim relates. 25 (ECF No. 31 at 24). Plaintiff has not alleged that he filed a petition in court for relief from the 26 requirement of Government Code Section 945.4. that was granted. Therefore, this state law claim 27 fails. 28 J. Relief Requested 1 Besides monetary damages, Plaintiff requests injunctive relief, declaratory relief, 2 attorney’s fees, and costs of suit. 3 Plaintiff requests a court order for defendants R. Diaz, C. Pfeiffer, and their agents to 4 expunge Plaintiff’s disciplinary conviction from his prison record and restore all of the 365 days 5 of credits he forfeited. This relief is not available in a § 1983 case such as this one. Plaintiff’s 6 only remedy is to file a habeas corpus petition. 7 As for declaratory relief, such request should be denied because it is subsumed by 8 Plaintiff's damages claim. See Rhodes v. Robinson, 408 F.3d 559, 565-66 n.8 (9th Cir. 2005) 9 (because claim for damages entails determination of whether officers’ alleged conduct violated 10 plaintiff’s rights, the separate request for declaratory relief is subsumed by damages action); see 11 also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx), 2001 WL 630534, at *5 (C.D. Cal. 12 Apr. 18, 2001) (“Where a plaintiff seeks damages or relief for an alleged constitutional injury 13 that has already occurred declaratory relief generally is inappropriate[.]”) 14 With regard to attorney’s fees, “[i]n any action or proceeding to enforce a provision of 15 section[] 1983. . . , the court, in its discretion, may allow the prevailing party. . . reasonable 16 attorney’s fees. . . .” 42 U.S.C. § 1988(b). Plaintiff’s contention that he is entitled to attorney’s 17 fees if he prevails is without merit. Plaintiff is representing himself in this action. Because 18 Plaintiff is not represented by an attorney, he is not entitled to recover attorney’s fees if he 19 prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded by statute 20 as stated in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez v. Kangas, 814 21 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. Cnty. of Los Angeles, 654 F.3d 950, 954 22 (9th Cir. 2011) (“The Court accordingly adopted a per se rule, categorically precluding an award 23 of attorney’s fees under § 1988 to a pro se attorney-plaintiff.”) 24 Therefore, Plaintiff is not entitled to a declaration, expungement of his disciplinary 25 record, attorney’s fees, or declaratory relief if he prevails in this action. Based on the nature of 26 the claims at issue in this action, which involve past conduct, Plaintiff is not entitled to injunctive 27 relief and is therefore confined to seeking money damages for the violations of his federal rights. 28 V. CONCLUSION AND RECOMMENDATIONS 1 For the reasons set forth above, the court finds that Plaintiff states cognizable claims in 2 the Second Amended Complaint against defendant J. Garcia for use of excessive force and failure 3 to protect in violation of the Eighth Amendment, but no other claims against any Defendant. 4 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave 5 to amend when justice so requires.” Here, the court is persuaded that Plaintiff, other than a stated 6 above, would be unable to allege any facts, based upon the circumstances he challenges, that 7 would state other cognizable claims under section 1983. “A district court may deny leave to 8 amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 9 2013). The court finds that the deficiencies outlined above are not capable of being cured by 10 amendment, and therefore further leave to amend should not be granted. 28 U.S.C. § 11 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. This case proceed with Plaintiff’s Second Amended Complaint, filed on 14 September 8, 2020, against defendant J. Garcia for use of excessive force and 15 failure to protect in violation of the Eighth Amendment, but no other claims 16 against any of the Defendants; 17 2. Plaintiff’s claims for retaliation, violation of equal protection, violation of the 18 ADA, inadequate medical care, and state law claims, be dismissed based on 19 Plaintiff’s failure to state a claim; 20 3. Defendants C/O J. Harmon, C/O D. Dozer, Sergeant B. Stane, Lieutenant A. 21 Sotelo, Warden C. Pfeiffer, C/O F. Garcia (father of C/O J. Garcia), S. Kernan 22 (CDCR Secretary), R. Soto (inmate), and Ralph Diaz (CDCR Secretary) be 23 dismissed for Plaintiff’s failure to state any claims against them; and 24 4. This case be referred back to the Magistrate Judge for further proceedings, 25 including initiation of service of process. 26 These findings and recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 28 after the date of service of these findings and recommendations, Plaintiff may file written 1 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 specified time may result in waiver of the right to appeal the district court’s order. Wilkerson v. 4 Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 5 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: February 9, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28