(PC) Hill v. Kernan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HILL, No. 2:19-cv-00428 AC 12 Plaintiff, 13 v. ORDER 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Allegations of the Complaint 12 Plaintiff has filed a First Amended Complaint, ECF No. 9, which supersedes the original 13 and is screened here. The amended complaint names fifteen defendants, all correctional officers 14 or officials at Hight Desert State Prison (HDSP). The amended complaint alleges in sum as 15 follows. 16 On March 10, 2017, plaintiff was ordered out of his cell for a cell search. Plaintiff refused 17 to leave his cell without his prescribed orthotic footwear, and there ensued a 30 minute “stand- 18 off” between plaintiff and officers including Rivera before plaintiff agreed to exit the cell in his 19 shower shoes. Officer Rivera stated, “You’re complaining about shit.” While plaintiff and other 20 inmates were out of their cells during the searches, plaintiff politely declined to sit where directed 21 by officers; plaintiff is Black and was directed to sit with Hispanic inmates who would have 22 considered it disrespectful. Rivera made another statement about plaintiff making things difficult. 23 Rivera was aware that plaintiff had assisted the Inspector General and Office of Internal Affairs in 24 their investigations into staff misconduct at HDSP. 25 Rivera then escorted plaintiff in handcuffs to a holding cage, which was unnecessary and 26 contrary to routine practice. During the escort, Rivera became rough and deliberately walked too 27 fast despite plaintiff’s inability to keep up due to his chronic foot condition. Plaintiff complained, 28 and Rivera used a racial epithet then threw plaintiff to the ground. Rivera kneeled on plaintiff’s 1 neck and tried to break his wrist. Approximately 20 officers responded to Rivera’s alarm. 2 Officers R. Johnson, Byers, Escobar and Walters joined in restraining plaintiff by kneeling on his 3 neck, twisting his left arm, and otherwise beating him up. During the assault plaintiff could not 4 breathe. The other officers failed to intervene even though plaintiff called out that he was being 5 beaten because Black and in cuffs. Plaintiff sustained a permanent injury to his shoulder. 6 After the incident, plaintiff was charged with a disciplinary violation for battery on 7 Officer Rivera and making a false report of assault. Numerous officers made false statements 8 regarding the incident. Numerous officers failed to follow reporting procedures. Plaintiff was 9 denied access to reports written about the incident. Plaintiff was retained in ad seg for a time, and 10 eventually assessed a SHU term. These sanctions exacerbated plaintiff’s mental illness, 11 eventually necessitating his transfer to another institution where he could receive a higher level of 12 mental health care. Plaintiff has PTSD as the result of his experiences at HDSP. 13 IV. Claims for Which a Response Will Be Required 14 Plaintiff’s allegations against defendant Rivera state a claim for the excessive use of force 15 in violation of the Eighth Amendment. ECF No. 9 at ¶¶ 34-35; see Hudson v. McMillian, 503 16 U.S. 1, 6-7 (1992). This claim also lies against defendants R. Johnson, Byers, Escobar and 17 Walters, all of whom are alleged to have personally and directly participated in the use of 18 excessive force. Id. at ¶ 36; see Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (liability 19 extends to those who do an act or participate in another’s act). These five defendants will be 20 required to respond to the claim. 21 V. Failure to State a Claim 22 To the extent that plaintiff seeks to hold additional defendants liable for the use of force 23 his claim fails, because only the defendants identified above are alleged to have participated in 24 the assault. See, generally, Johnson, 588 at 743. There are no facts showing that other officers 25 present at the scene could tell that the use of force was excessive and failed to stop it—an alarm 26 had been sounded indicating an assault on staff, and there is no information about which 27 defendants were in a position to see that the force being used was excessive under the 28 circumstances known to them. Accordingly, they cannot have acted with the requisite culpable 1 state of mind. See Hudson, 503 U.S. at 6-7. Higher ranking officials, including the warden, are 2 not liable for what C.O.s do unless they caused it to happen. See Iqbal, 556 U.S at 676; Starr v. 3 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 4 Plaintiff’s allegations do not support a claim for retaliation in violation of his First 5 Amendment rights. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).1 The 6 complaint indicates that Rivera considered plaintiff to be a chronic complainer, but does not show 7 that he was aware of specific protected conduct and intended to punish plaintiff for his exercise of 8 his rights. Plaintiff’s retaliation allegations (including those regarding his unspecified 9 cooperation with the Inspector General and Internal Affairs) are conclusory and thus insufficient 10 to state a claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (conclusory 11 allegations do not state a claim). To the extent that Rivera’s hostility to plaintiff as a complainer 12 may be relevant to Rivera’s state of mind when he allegedly assaulted plaintiff, it goes to the 13 excessive force claim and does not provide an independent basis for relief. The complaint does 14 not state facts showing that any other defendant took adverse action against plaintiff because of 15 plaintiff’s exercise of his First Amendment rights. 16 The allegations of the complaint do not support a racial discrimination claim implicating 17 plaintiff’s equal protection rights. See Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003) 18 (to state a claim for violation of equal protection, plaintiff must show that the defendant acted 19 with an intent or purpose to discriminate against him based upon his membership in a protected 20 class). Isolated racial comments or epithets, such as are alleged here, are not enough. Freeman v. 21 Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (abusive language, even if directed at plaintiff’s 22 heritage, is insufficient for equal protection claim), overruled on other grounds by Shakur v. 23 Schriro, 514 F.3d 878 (9th Cir. 2008). Rivera’s alleged use of a racist slur may be 24 circumstantially relevant to his intent in using force, but it does not support a free-standing claim 25 for relief. 26 1 To state a claim for retaliation, plaintiff must state facts establishing that a particular defendant 27 (1) took specified adverse action against plaintiff (2) because of (3) conduct of plaintiff’s that was protected by the First Amendment, and that the adverse action (4) chilled plaintiff’s exercise of 28 his rights and (5) did not reasonably advance a legitimate correctional goal. Id. 1 The allegations of the complaint do not support a claim for deliberate indifference to 2 plaintiff’s mental health. Inadequate medical or mental health care violates the Eighth 3 Amendment when the acts and omissions of prison officials are “sufficiently harmful to evidence 4 deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 5 Plaintiff’s allegations must show both that his medical needs were objectively serious, and that 6 defendants possessed a sufficiently culpable state of mind. See Wilson v. Seiter, 501 U.S. 294, 7 299 (1991). The requisite state of mind, “deliberate indifference,” is established only where the 8 defendant subjectively knew of and disregarded an excessive risk to inmate health and safety. 9 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). The amended complaint does not 10 identify any mental health care that was provided or withheld improperly. The allegation that a 11 disciplinary sanction exacerbated a mental health condition does not itself state a claim for relief; 12 the question is what care was provided, and with what state of mind. Plaintiff states that he did 13 receive mental health treatment, and was transferred to a different institution where he could 14 receive a higher level of care. These facts do not state a claim for relief. 15 The allegations of the complaint do not support a claim for deliberate indifference to 16 plaintiff’s health and safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). For the same 17 reasons noted above with regard to the mental health claim, the allegations do not support 18 deliberate indifference. 19 The allegations of the complaint do not support a claim for violation of plaintiff’s right to 20 due process. The court understands this claim to be based on the alleged false charges, RVR 21 proceedings, and their aftermath. The falsification of reports or evidence does not support a claim 22 for relief. See Buckley v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no 23 constitutional right to be free from wrongfully issued disciplinary reports), aff’d without opinion, 24 168 F.3d 498 (9th Cir. 1999); accord, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); 25 Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986). The wrongful denial of inmate 26 grievances does not state a due process claim. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 27 2003). The violation of prison regulations or policies does not rise to the level of a due process 28 violation, and the complaint does not identify any denial of the minimal procedural protections 1 required in the prison discipline context. See Wolff v. McDonnell, 418 U.S. 539 (1974) 2 (procedural due process requirement for disciplinary hearing where good time credits at stake); 3 Hewitt v. Helms, 459 U.S. 460, 472 (1983) (procedural due process requirements for ad seg 4 placement), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); 5 Superintendent v. Hill, 472 U.S. 445, 454 (1985) (disciplinary finding must be supported by 6 “some evidence”). For all these reasons, plaintiff cannot maintain a due process claim based on 7 the alleged wrongful RVR or the sanctions imposed. 8 VI. Leave to Amend 9 For the reasons set forth above, the court finds that the complaint does not state 10 cognizable claims for retaliation in violation of the First Amendment; racial discrimination in 11 violation of equal protection; deliberate indifference to mental health; deliberate indifference to 12 health and safety; or violation of due process. Because plaintiff may be able to allege facts to 13 remedy this, he will be given the opportunity to amend the complaint if he desires. 14 Plaintiff may proceed forthwith to serve defendants Rivera, Johnson, Byers, Escobar and 15 Walters on his Eighth Amendment excessive force claim only, or he may delay serving any 16 defendant and amend the complaint. 17 Plaintiff will be required to complete and return the attached notice advising the court how 18 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 19 file a second amended complaint. If plaintiff elects to proceed on his excessive force claim 20 against defendants Rivera, Johnson, Byers, Escobar and Walters without amending the complaint, 21 the court will proceed to serve the complaint. A decision to go forward without amending the 22 complaint will be considered a voluntarily dismissal without prejudice of all other claims and 23 defendants. 24 If plaintiff chooses to file a second amended complaint, he must demonstrate how the 25 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 26 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 27 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 28 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 1 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 2 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 3 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 4 268 (9th Cir. 1982) (citations omitted). 5 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 6 his amended complaint complete. Local Rule 220 requires that an amended complaint be 7 complete in itself without reference to any prior pleading. This is because, as a general rule, an 8 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 10 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 11 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 12 the original complaint no longer serves any function in the case. Therefore, in an amended 13 complaint, as in an original complaint, each claim and the involvement of each defendant must be 14 sufficiently alleged. 15 VII. Plain Language Summary of this Order for a Pro Se Litigant 16 Your request to proceed in forma pauperis is granted and you are not required to pay the 17 entire filing fee immediately. 18 Some of the allegations in the amended complaint state claims against some defendants 19 and some do not. You have stated an Eighth Amendment excessive force claim against Officers 20 Rivera, Johnson, Byers, Escobar and Walters. These defendants must answer the claim. 21 Your allegations do not support an excessive force claim against officers who did not 22 participate in the alleged assault. Supervisors and wardens are not liable for what their 23 subordinates do, but only for what they do themselves. 24 The facts in the amended complaint do not state stand-alone claims for retaliation or racial 25 discrimination, but if Rivera assaulted you for racist or retaliatory reasons that is something that 26 might be relevant to your excessive force claim. It does not look like the retaliation or equal 27 protection claims add anything to your case, since you do not need them in order to argue that 28 Rivera hurt you on purpose for those reasons. 1 The facts in the amended complaint do not show that you received mental health treatment 2 that was deliberately indifferent, or that you were unconstitutionally subjected to unsafe 3 conditions. You can’t base an Eighth Amendment mental health or safety claim on the fact that 4 you were held in ad seg or given a SHU term. 5 You have not stated a due process claim, because due process is not violated by false 6 disciplinary charges, falsified reports, failure to follow prison policies, or wrongful denial of 7 grievances. Nothing in the amended complaint shows a violation of the very minimum 8 constitutional requirements for an RVR hearing. 9 You have a choice to make. You may either (1) proceed immediately on your excessive 10 force claim against Officers Rivera, Johnson, Byers, Escobar and Walters and voluntarily dismiss 11 the other claims and defendants, or (2) try to amend the complaint. If you want to go forward 12 without amending the complaint, you will be voluntarily dismissing without prejudice your 13 claims for retaliation, racial discrimination, deliberate indifference to mental health, deliberate 14 indifference to safety, and violation of due process. If you choose to amend your complaint, the 15 second amended complaint must include all of the claims you want to make, including the ones 16 that have already been found to state a claim, because the court will not look at the claims or 17 information in the original complaint. Any claims not in the second amended complaint will 18 not be considered. You must complete the attached notification showing what you want to do 19 and return it to the court. Once the court receives the notice, it will issue an order telling you 20 what you need to do next (i.e. file an amended complaint or wait for defendants to be served). 21 CONCLUSION 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 25 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 26 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 27 Director of the California Department of Corrections and Rehabilitation filed concurrently 28 herewith. 1 3. The court has screened the complaint and finds that it states an Eighth Amendment 2 || excessive force claim against Officers Rivera, Johnson, Byers, Escobar and Walters only. 3 4. Claim One (excessive force) does not state a claim for which relief can be granted 4 || against defendants Sharp, Spearman or Kernan. 5 5. Claims Two (retaliation), Three (equal protection), Four (deliberate indifference to 6 || mental health), Five (deliberate indifference to safety) and Six (due process) fail to state a claim 7 || for which relief can be granted against any defendant. 8 6. Plaintiff has the option to proceed immediately on Claim One (excessive force) against 9 | defendants Rivera, Johnson, Byers, Escobar and Walters, or to amend the complaint. 10 7. Within fourteen days of service of this order, plaintiff shall complete and return the 11 || attached form notifying the court whether he wants to proceed on the screened complaint or 12 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 13 || will assume that he is choosing to proceed on the complaint as screened and will recommend 14 || dismissal without prejudice of the Claims Two through Six and all defendants other than Rivera, 15 || Johnson, Byers, Escobar and Walters. 16 | DATED: April 15, 2021 ~ 17 Htttenr— Lhor—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HILL, No. 2:19-cv-00428 AC 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on Claim One (Eighth Amendment excessive 19 force) against defendants Rivera, Johnson, Byers, Escobar and Walters without amending 20 the complaint. Plaintiff understands that by going forward without amending the 21 complaint he is voluntarily dismissing without prejudice Claims Two through Six and all 22 defendants other than Rivera, Johnson, Byers, Escobar and Walters. 23 _____ Plaintiff wants to amend the complaint. 24 25 DATED:_______________________ 26 KENNETH HILL Plaintiff pro se 27 28