(PC) Hardney v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HARDNEY, No. 2:20-CV-01587-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 R. DIAZ, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 On November 3, 2020, the Court issued an initial screening order. See ECF 7 No.10. In that order, the Court summarized Plaintiff’s allegations as follows: 8 Plaintiff, a California state prisoner, brings three claims variously alleging violations of the First, Fourth, and Eighth Amendments 9 to the United States Constitution. ECF No. 1 at 1, 18, 24, 28. All alleged events occurred while Plaintiff was incarcerated at California State Prison- 10 Sacramento (“CSP-Sac”). See id. at 1. He names six defendants: (1) R. Diaz, the former Secretary for the California Department of Corrections 11 and Rehabilitation; (2) Hampton, a correctional lieutenant at CSP-Sac; (3) Houghland, a correctional lieutenant at CSP-Sac; (4) R. Meier, a CSP-Sac 12 official; (5) Dr. K. Patel, a psychologist at CSP-Sac; and (6) Bullard, a correctional sergeant at CSP-Sac. Id. at 10. 13 Each of Plaintiff’s claims extend from his accusations of sexual harassment against Defendant Patel and subsequent administrative 14 proceedings. See id. at 18, 24, 28. Plaintiff alleges that, after a doctor’s appointment, he returned to his cell to wash and change clothes. Id. at 11, 15 18. Defendant Patel stood roughly twenty yards away in an adjacent dayroom alongside correctional officer Nunnery. Id. at 11, 19. Patel 16 allegedly stared into Plaintiff’s cell, watching him undress. Id. Plaintiff covered the cell’s exterior window to block sunlight and darken the cell to 17 cloak him from Patel’s gaze. Id. Inmates are not permitted to cover cell door windows, however, and although the cell was dark, Patel continued 18 to stare. Id. at 11, 18–19. A correctional sergeant later came to Plaintiff’s cell and 19 escorted him to administrative segregation. Id. The sergeant told Plaintiff that he was being assigned to administrative segregation because Patel had 20 made indecent exposure allegations against him. Id. Plaintiff contends that Patel’s incident report states that she was standing in the dayroom and 21 noticed Plaintiff standing in his cell moving his arms below his waist. Id. at 12. She alleges that Plaintiff stood naked on his toilet and exposed his 22 penis. Id. Accordingly, prison officials accused Plaintiff of indecent exposure. Id. Plaintiff contends, nevertheless, that neither his actions nor 23 the factual allegations in Patel’s report fall within the scope of indecent exposure regulations. Id. 24 Patel, according to Plaintiff, effectively admitted that Plaintiff’s actions did not constitute indecent exposure during the hearing 25 that followed her incident report. Id. Plaintiff contends that Patel stated she had no way of knowing if Plaintiff was standing on the toilet and that 26 she was not positive what Plaintiff was doing. Id. Plaintiff suggests that Patel’s statement means she assumed or was coached to say that Plaintiff 27 exposed himself. Id. He also suggests that Patel admitted to standing behind Officer Nunnery so that she could peer around him into Plaintiff’s 28 cell. Id. Plaintiff attempted to ask Patel about California regulations 1 governing staff sexual misconduct and whether it was reasonably necessary to invade Plaintiff’s privacy to maintain safety and security. Id. 2 at 13. Defendant Hampton, the hearing officer, disallowed the questions, deeming them irrelevant. Id. Plaintiff contends Hampton was in error. Id. 3 He also maintains that Patel’s actions, and the consequent hearing against him, are symptomatic of ongoing staff sexual misconduct (and the inaction 4 of administrative officials to stop it) within the California Department of Corrections and Rehabilitation. Id. He contends that “Defendants” or 5 “officials” are aware of continuing staff sexual abuse of inmates. Id. at 13, 20, 23. 6 Plaintiff was brought before the Institutional Classification Committee, chaired by Defendant R. Meier. Id. at 14. Plaintiff asserts 7 that Meier was adamant from the beginning of the hearing that Plaintiff be placed in a pilot program at California State Prison-Corcoran (“CSP- 8 Corcoran”) for inmates with problems exposing themselves. Id. Plaintiff objected, stating that female staff members routinely stare at inmates in 9 their cells for personal and punitive purposes. Id. Plaintiff also told Meier he had an upcoming court date in Sacramento and that he had enemies and 10 safety concerns at CSP-Corcoran. Id. Meier allegedly disregarded Plaintiff’s objections and arbitrarily forced Plaintiff to be assigned to the 11 pilot “IEX” program. Id. Meier’s classification report assigning Plaintiff to the IEX program was allegedly fraudulent, containing fabricated 12 information and falsely stating that Plaintiff agreed to the program. Id. Plaintiff also alleges Meier was aware of prison staff’s widespread sexual 13 abuse of inmates. Id. at 20. Following Meier’s report assigning Plaintiff to the IEX 14 program, Plaintiff became suicidal. Id. at 15. Overwhelmed by “psychological abuse” at the hands of prison staff, he was placed in the 15 crisis unit on suicide watch. Id. Upon discharge from the crisis unit, Plaintiff was returned to the administrative segregation unit to await 16 transfer to CSP-Corcoran and the IEX program. Id. Defendants Houghland1 and Bullard, alongside other correctional officers, came to 17 escort Plaintiff on his transfer date. Id. Plaintiff explained that he does not have an indecent exposure problem. Id. at 16. Houghland allegedly 18 conducted a “mock” disciplinary hearing outside Plaintiff’s cells, stated Plaintiff was guilty, and asked Plaintiff if there was another reason that he 19 would not leave his cell. Id. Sergeant Bullard then allegedly emptied an entire sixteen-ounce canister of pepper spray into Plaintiff’s face. Id. 20 Bullard and Houghland let Plaintiff anguish for five minutes before decontaminating Plaintiff’s face with cold water. Id. The water did not 21 remove the pepper spray and Plaintiff’s face burned for the entirety of the five to six-hour trip from CSP-Sac to CSP-Corcoran. Id. 22 On arrival at CSP-Corcoran, Plaintiff was again placed in the crisis unit before being transferred to California Men’s Colony’s crisis 23 unit where he remained for several weeks. Id. at 17. Plaintiff alleges that he was never admitted to the IEX program, but instead transferred back to 24 CSP-Sac. Id. Houghland and Bullard wrote Plaintiff up on a rule violation report, alleging that he obstructed a peace officer. Id. No redress came of 25 Plaintiff’s exhausted administrative remedies regarding Bullard’s alleges 26 1 Plaintiff identifies a Lieutenant Holigan as the correctional officer who accompanied Sergeant Bullard to transfer him to CSP-Corcoran. See id. at 15–16. No Lieutenant 27 Holigan, however, is named as a defendant, but a Lieutenant Houghland is. Id. at 1, 9. Plaintiff also uses the name Houghland alongside Bullard’s name in his third cause of action. Id. at 9, 28. 28 The Court accordingly assumes that Lieutenant Holigan is Lieutenant Houghland. 1 excessive use of force in spraying Plaintiff with the pepper spray. Id. Plaintiff alleges that administrative staff continue to fail to address 2 Defendants’ abusive conduct. Id. Plaintiff’s first cause of action asserts Patel, Meier, Diaz, 3 and Hampton violated the Fourth Amendment in failing to protect his right to privacy; namely, failing to protect or redress Patel’s invasion of his 4 privacy beyond any necessary measure to maintain security or safety. Id. at 18–23. He also asserts that Defendants’ were deliberately indifferent in 5 failing to protect him from sexual misconduct (such as the unrestricted gaze of members of the opposite sex), which rises to cruel and unusual 6 punishment in violation of the Eighth Amendment. Id. Plaintiff’s second claim asserts that Defendants Diaz, 7 Hampton, and Meier further violated the Eighth Amendment in disregarding that his conduct did not fall within indecent exposure 8 regulations, and falsifying (or failing to rectify) reports about Plaintiff’s alleged indecent exposure and suitability for the IEX program. Id. at 24– 9 28. Plaintiff also asserts that Hampton, in deeming his interview questions to Patel irrelevant, violated his First Amendment right to gather 10 information to rebut the case against him. Id. at 24–27. He contends that Hampton interfered with Plaintiff’s questions to punish him and retaliate 11 against him for opposing the indecent exposure charge and “investigating” staff sexual misconduct. Id. at 24, 27. Plaintiff also alleges Diaz and 12 Meier are responsible for the same First Amendment violation. Id. at 24. Finally, Plaintiff claims that Houghland and Bullard used 13 unjustified, excessive force against him when they transferred him to CSP- Corcoran, holding a mock disciplinary hearing and pepper spraying him 14 without cause. Id. 28–30. He asserts that the excessive force constituted cruel and unusual punishment in violation of the Eighth Amendment. Id. 15 at 28. Plaintiff lists the allegedly false, unwarranted rules violation issued to him upon his return to CSP-Sac as part of the conduct violating the 16 Eighth Amendment. Id. 17 ECF No. 10, pgs. 2-5. 18 The Court summarized its conclusions as follows: 19 In his first cause of action, Plaintiff states cognizable Fourth Amendment and Eighth Amendment claims against Defendant 20 Patel for her alleged invasion of his privacy beyond that necessary to maintain security or safety. He does not state a cognizable Fourth 21 Amendment or Eighth Amendment claim against Hampton or Meier for failure to protect him from Patel’s conduct. Plaintiff’s second cause of 22 action states an Eighth Amendment claim against Hampton or Meier to the extent it alleges they knew of and were deliberately indifferent to ongoing 23 staff sexual misconduct. He also states a cognizable First Amendment claim against Hampton and Meier to the extent he alleges they improperly 24 interfered with the classification process to retaliate against him for asking questions and highlighting staff sexual abuse of inmates. Plaintiff’s third 25 cause of action states a cognizable Eighth Amendment claims against Houghland and Bullard for the use of unconstitutionally excessive force. 26 None of Plaintiff’s allegations against Defendant Diaz state a cognizable claim. The Court will grant Plaintiff leave to amend. 27 ECF No. 10, pgs. 5-6. 28 1 The Court found the complaint states no cognizable claim as against Defendant 2 Diaz. See id. at 6-7. Specifically, the Court held: 3 Plaintiff’s allegations do not establish any cognizable claim against Defendant Diaz, both because they do not satisfy Federal Rule of 4 Civil Procedure 8 and because there is no allegation that Diaz knew of or directed unconstitutional conduct. 5 * * * 6 Plaintiff’s complaint fails to allege a causal link between 7 Diaz, either individually or as CDCR Secretary, and the various alleged constitutional violations. Plaintiff’s vague conclusion that Diaz is 8 responsible for or is encompassed within the category of “Defendants” who acted unconstitutionally, is insufficient. 9 ECF No. 10, pgs. 6-7. 10 11 The Court also concluded Plaintiff fails to state cognizable claims under the Fourth 12 or Eighth Amendments against Defendants Hampton and Meier. As to Plaintiff’s Fourth 13 Amendment claims against Defendants Hampton and Meier, the Court held: 14 Defendant Patel’s connection to the alleged Fourth Amendment violation is obvious. From a relatively close position, Patel 15 allegedly made more than a casual observation of Plaintiff while he was nude in his cell, staring for a prolonged period without any safety or 16 security justification and subsequently accusing him of indecent exposure. There are, accordingly, adequate factual allegations for Plaintiff’s Fourth 17 Amendment claim to proceed against Patel. Outside, however, of Hampton’s and Meier’s involvement in subsequent investigative and 18 classification hearings based on Patel’s, Plaintiff fails to allege how either Hampton or Meier is connected to the underlying privacy violation. 19 Although law enforcement officials, such as police officers and correctional officers, may be held liable for failure to intercede when 20 fellow officers violate the constitutional rights of a citizen or prisoner, liability attaches only if the officer in question had the opportunity to 21 intercede. See Cunningham v. Gates, 229 F.3d 1271, 1289–90 (9th Cir. 2000); Galvan v. City of Vacaville, No. 2:18-cv-279-KJM-CKD, 2018 22 WL 4214896, at *2–3 (E.D. Cal. Sept. 15, 2018); Melendez v. Hunt, NO. 1:13-cv-00279 AWI-BAM (PC), 2016 WL 5156469, at *11 (E.D. Cal. 23 Sept. 21, 2016); Freeland v. Sacramento City Police Dep’t, No. CIV S-06- 0187 LKK DAD P., 2010 WL 408908, at *4–5, 14–15 (E.D. Cal. Jan. 29, 24 2010). Plaintiff, to his credit, states that prison officials have failed to address a pattern of staff sexual impropriety. Nevertheless, he makes no 25 allegation that either Hampton or Meier knew of or could have interceded to prevent Patel’s alleged sexual misconduct. He only concludes that they 26 failed to protect him or correct Patel’s actions after Patel’s alleged violation. Plaintiff thus fails to state a Fourth Amendment claim against 27 28 / / / 1 either Hampton or Meier. Cf. Freeland, 2016 WL 5156469, at *4–5, 14– 15. 2 ECF No. 10, pgs. 8-9. 3 4 As to Plaintiff’s Eighth Amendment claims against Defendants Hampton and 5 Meier, the Court held: 6 Plaintiff’s Eighth Amendment claim against Hampton and Meier in his first cause of action fails for similar reasons as the Fourth 7 Amendment claim. He makes no allegation that either Hampton or Meier knew of or could have interceded to prevent Patel’s alleged constitutional 8 violation. He only concludes that they failed to protect him or correct Patel’s actions after she allegedly stared into Plaintiff’s cell. Hampton and 9 Meier can only be liable for failure to intercede if they had a realistic opportunity to prevent Patel’s sexual misconduct. There is no such 10 allegation in Plaintiff’s complaint. The claim cannot proceed as alleged. 11 ECF No. 10, pg. 9. 12 Plaintiff was provided an opportunity to file a first amended complaint to address 13 the defects in his original complaint identified in the initial screening order. See id. at 10. 14 Plaintiff was cautioned that failure to file a first amended complaint within the time provided 15 would result in an order that the action proceeds on the cognizable claims and findings and 16 recommendations that all other claims/defendants be dismissed. See id. Plaintiff has not filed a 17 first amended complaint within the 30 days provided in the November 3, 2020, initial screening 18 order. As such, the Court now recommends dismissal of claims/defendants consistent with the 19 screening order and Plaintiff’s election not to file a first amended complaint.2 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 2 By separate order issued herewith, the Court directs service as to the following Defendants and claims: (1) Plaintiff’s claims against Defendant Patel for her alleged violation of 26 his privacy beyond that necessary to maintain security or safety; (2) Plaintiff’s claims against Defendants Hampton and Meier to the extent Plaintiff alleges they improperly interfered with the 27 classification process to retaliate against him for asking questions and highlighting staff sexual abuse of inmates; and (3) Plaintiff’s claims against Defendants Houghland and Bullard for the use 28 of excessive force. 1 Based on the foregoing, the undersigned recommends that: 2 1. All claims against Defendant Diaz be dismissed and Diaz be terminated as 3 | adefendant to this action; and 4 2. Plaintiff's Fourth and Eighth Amendment claims against Defendant 5 | Hampton and Meier be dismissed. 6 These findings and recommendations are submitted to the United States District 7 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 8 | after being served with these findings and recommendations, any party may file written objections 9 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 10 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 11 Yist, 951 F.2d 1153 (9th Cir. 1991). 12 13 | Dated: March 9, 2021 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28