(PC) Nino v. Munoz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOE NINO, Case No. 1:20-cv-01722-JLT (PC) Plaintiff, 12 ORDER DIRECTING PLAINTIFF TO v. FILE A FIRST AMENDED COMPLAINT 13 OR NOTIFY THE COURT OF HIS J. MUNOZ, et al., DESIRE TO PROCEED ONLY ON 14 CLAIMS FOUND COGNIZABLE Defendants. (Doc. 1) 15 21-DAY DEADLINE 16 17 Joe Nino alleges the defendants subjected him to retaliation and cruel and unusual 18 punishment. (Doc. 1.) The Court finds that Plaintiff states cognizable claims against Defendants 19 Munoz, Carillo, Harris, Masferrer, and an unnamed sergeant, but not against the remaining 20 defendants. Therefore, the Court directs Plaintiff to file a first amended complaint curing the 21 deficiencies in his pleading or a notice that he wishes to proceed only on the claims found 22 cognizable. 23 I. SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 26 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 27 fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant 1 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 2 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 3 II. PLEADING REQUIREMENTS 4 A. Federal Rule of Civil Procedure 8(a) 5 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 6 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 7 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 8 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 9 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 10 quotation marks and citation omitted). 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 12 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 13 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 14 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 15 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 16 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 17 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 18 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 19 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 20 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 21 of a civil rights complaint may not supply essential elements of the claim that were not initially 22 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 23 quotation marks and citation omitted), and courts “are not required to indulge unwarranted 24 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 25 marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 26 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 27 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 1 B. Linkage and Causation 2 Section 1983 provides a cause of action for the violation of constitutional or other federal 3 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 4 section 1983, a plaintiff must show a causal connection or link between the actions of the 5 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 6 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 7 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 8 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 9 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 10 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 11 III. PLAINTIFF’S ALLEGATIONS1 12 Plaintiff’s claims stem from incidents that occurred while he was incarcerated at 13 California Correctional Institution. (Doc. 1 at 1.) On December 31, 2018, Correctional Officers 14 Harris and Masferrer approached Plaintiff’s cell, at which point Plaintiff “ran to the toilet . . . and 15 flushed some contraband.” (Id. at 21.) The officers yelled at Plaintiff, then placed him in 16 handcuffs and pushed him to the ground. (Id.) The officers continued yelling at Plaintiff, asking 17 him what he had flushed, and searched his body and clothing. (Id. at 21-22.) The officers then 18 pulled Plaintiff’s pants and boxers down and sprayed him with pepper spray, “laughing and 19 coughing at the same time.” (Id. at 22.) One of the officers “spread [Plaintiff’s] buttocks . . . and 20 . . . penetrated his rectum” with his fingers. (Id.) As the officers were escorting Plaintiff out of the 21 building, they pushed him against a wall and repeatedly punched him with closed fists in his back 22 and rib area, while an unnamed sergeant (“Sergeant John Doe”) laughed with the officers. (Id.) 23 The sergeant then told the officers, “that’s it, take him to the front.” (Id.) Officer Harris then 24 kicked Plaintiff in the genitals. (Id.) After the incident, Plaintiff filed grievances for excessive 25 force and sexual assault. (See id. at 7.) 26 On July 29, 2019, Correctional Officers Carillo and Munoz approached Plaintiff in the 27 exercise yard and ordered him to turn around and place his hands behind his back. (Id. at 5.) 1 Plaintiff complied, and Munoz placed him in handcuffs while Carillo put leg irons around his 2 ankles. (Id.) As the officers were escorting Plaintiff away, Munoz tripped Plaintiff, and the 3 officers slammed him to the floor. (Id. at 5-6.) The officers then punched Plaintiff in his head and 4 face, as Plaintiff yelled for them to stop. (Id. at 6.) Officer Munoz then “placed his hand around 5 [Plaintiff’s] neck and stated, ‘you know what this is for motherfucker, you want to write me and 6 my partners up, the ball is in your court.’” (Id.) When the officers stopped punching, Munoz 7 stood up and kicked Plaintiff, stating, “snitch.” (Id.) As “nurses and ISU” approached, Munoz 8 said to Carillo, “we will say that he kicked you and tried to spit, okay?” to which Carillo 9 responded, “cool.” (Id.) Plaintiff was then escorted to the facility’s medical clinic, and he was 10 later transferred to an outside hospital. (Id.) 11 When Plaintiff returned to the prison, Munoz approached his holding cell, stating, “we 12 sent you back your complaint for excessive force and P.R.E.A. allegations against Harris, if you 13 know what[’s] better for you, then you better drop it.” (Id. at 7.) Plaintiff replied that he would 14 not drop his complaint. (Id.) Plaintiff was then transferred to Kern Valley State Prison. (Id.) 15 As a result of the July 29, 2019 incident, Plaintiff suffered a laceration above his eyebrow, 16 which required stitches; a concussion; bruises; headaches; and a “subclinical iritis.” (Id. at 6-7.) 17 Plaintiff experienced pain and blurriness in his eye, and he now requires prescription glasses. 18 IV. DISCUSSION 19 A. Excessive Force 20 The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and 21 unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 22 (1986) (internal quotation marks and citation omitted). As courts have observed, “[p]ersons are 23 sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. 24 Iowa) (citations omitted). “Being violently assaulted in prison is simply not part of the penalty 25 that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 26 834 (1994) (internal quotation marks and citation omitted). 27 A correctional officer engages in excessive force in violation of the Cruel and Unusual 1 and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith 2 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). In other 3 words, “whenever prison officials stand accused of using excessive physical force . . . , the core 4 judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 5 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 6 (1992). In making this determination, courts may consider “the need for application of force, the 7 relationship between that need and the amount of force used, the threat reasonably perceived by 8 the responsible officials, and any efforts made to temper the severity of a forceful response.” Id. 9 at 7. Courts may also consider the extent of the injury suffered by the prisoner. Id. However, the 10 absence of serious injury is not determinative. Id. 11 Plaintiff states cognizable claims of excessive force against Defendants Harris, Masferrer, 12 Carillo, and Munoz. On December 31, 2018, Plaintiff alleges Officers Harris and Masferrer 13 pulled off his pants and underwear and sprayed his back area with pepper spray, after they had 14 placed him in handcuffs and taken him to the ground. (Doc. 1 at 21-22.) Plaintiff states that the 15 officers then punched him repeatedly in the back and rib area, and that Harris kicked him in the 16 genitals. (Id. at 22.) On July 29, 2019, Plaintiff alleges that Officers Carillo and Munoz slammed 17 him on the ground and punched him in the head and face, after they had restrained him in 18 handcuffs and leg irons. (Id. at 5-6.) Plaintiff states that Munoz also kicked him. In both of these 19 cases, Plaintiff’s allegations show that the officers applied force that was excessive and 20 unnecessary and for the purpose of causing harm, not to maintain or restore security, and that he 21 suffered significant injuries as a result. 22 Plaintiff does not state a cognizable claim against Correctional Sergeant Escarcega or the 23 unnamed warden of CCI (“Warden John Doe”). With respect to Escarcega, Plaintiff does not 24 mention the sergeant in his factual allegations, despite naming him as a defendant. Plaintiff thus 25 fails to link this defendant to his claims. See Section II.B, supra. With respect to Warden John 26 Doe, Plaintiff alleges the warden “fail[ed] to adequately train custody staff in the appropriate use 27 of force and . . . fail[ed] to investigate the incident or discipline the other defendants.” (Doc. 1 at 1 provide any facts showing that the warden failed to adequately train or discipline his staff or 2 investigate the incident, or that his actions or inactions were otherwise a cause of the Eighth 3 Amendment violations of which he complains. As explained in section II.A, supra, “[t]hreadbare 4 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 5 suffice.” Iqbal, 556 U.S. at 678 (citation omitted). 6 To the extent that Plaintiff names Sergeant Escarcega and Warden John Doe simply 7 because they hold supervisory positions, the Court notes that section 1983 does not impose 8 liability on a supervisor merely because her subordinate has violated Plaintiff’s rights. See id. at 9 676-77. To impose individual liability, a plaintiff must allege specific misdeeds that each 10 defendant committed, rather than the misdeeds of those she supervised. See id. If Plaintiff is 11 unable to make this showing with respect to any defendant(s), then he should not include the 12 defendant(s) in an amended complaint. 13 B. Failure to Intercede 14 “[O]fficers have a duty to intercede when their fellow officers violate the constitutional 15 rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 16 1994), rev’d in part on other grounds, 518 U.S. 81 (1996) (citations omitted). In cases involving 17 a failure to intercede, “the constitutional right violated by the passive defendant is analytically the 18 same as the right violated by the person who strikes the blows.” Id. Thus, where a plaintiff alleges 19 that a “prison officer . . . failed to intervene while his fellow prison officers used excessive force,” 20 “[t]he core judicial inquiry is whether the prison officer maliciously and sadistically failed to 21 intervene to cause harm.” Stevenson v. Holland, No. 1:16-cv-01831-AWI-JLT, 2020 WL 264422, 22 at *17 (E.D. Cal. Jan. 17, 2020). “Importantly, . . . officers can be held liable for failing to 23 intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 229 F.3d 1271, 24 1289 (9th Cir. 2000) (citation omitted). 25 Plaintiff alleges that Sergeant John Doe watched and laughed as Officers Harris and 26 Masferrer pushed him against a wall and punched him in the back and rib area. (Doc. 1 at 22.) 27 This allegation is sufficient to show that the sergeant failed to intervene for the purpose of 1 C. Sexual Assault 2 “Sexual . . . abuse of an inmate by a corrections officer is a violation of the [Cruel and 3 Unusual Punishments Clause of the] Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 4 1046 (9th Cir. 2012) (citations omitted). “In the simplest and most absolute of terms, . . . 5 prisoners [have a clearly established Eighth Amendment right] to be free from sexual abuse. . .” 6 Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (as quoted in Wood, 692 F.3d at 1046). 7 As explained above, cruel and unusual punishment claims have objective and subjective 8 components. See Hudson v. McMillian, 503 U.S. 1, 8 (citation omitted). In cases of coercive 9 sexual conduct by a prison guard against a prisoner, the Ninth Circuit has held that the conduct 10 itself satisfies the objective prong, since it is “deeply offensive to human dignity and is 11 completely void of penological justification.” Wood, 692 F.3d at 1051 (quoting Schwenk, 204 12 F.3d at 1196) (internal quotation marks omitted). Similarly, “the conduct itself constitutes 13 sufficient evidence that force was used maliciously and sadistically for the very purpose of 14 causing harm,” and thus the conduct standing alone satisfies the subjective prong. Id. at 1050 15 (internal quotation marks and citations omitted). 16 Plaintiff states a cognizable claim of sexual assault against Correctional Officers Harris 17 and Masferrer. Plaintiff alleges that one of the officers “penetrated [Plaintiff’s] rectum” with his 18 fingers, after both officers had taken Plaintiff to the ground in handcuffs and pepper sprayed him. 19 (Doc. 1 at 22.) This allegation satisfies both prongs of an Eighth Amendment claim. 20 D. Retaliation 21 A claim of First Amendment retaliation has five elements. Watison v. Carter, 668 F.3d 22 1108, 1114 (9th Cir. 2012). First, a plaintiff must allege that he engaged in protected activity. Id. 23 For example, filing an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 24 Cir. 2005), as is the right to access the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977); see 25 also Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that 26 the defendant took adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). 27 “Third, the plaintiff must allege a causal connection between the adverse action and the protected 1 action because of his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the 2 plaintiff must allege that the official’s acts would chill or silence a person of ordinary firmness 3 from future [protected] activities.” Watison, 668 F.3d at 1114 (internal quotation marks and 4 citation omitted). “Fifth, the plaintiff must allege ‘that the prison authorities’ retaliatory action did 5 not advance legitimate goals of the correctional institution.’” Id. (quoting Rizzo, 778 F.2d at 532). 6 Plaintiff states cognizable retaliation claims against Correctional Officers Munoz and 7 Carillo. Plaintiff alleges that he engaged in protected activity, i.e., filing staff complaints 8 regarding the December 31, 2018 incident of alleged excessive force and sexual assault, and that 9 Munoz and Carillo subjected him to adverse action because of his engagement in the protected 10 activity, i.e., subjecting him to excessive force on July 29, 2019. (Doc. 1 at 13-17.) Plaintiff does 11 not allege that the officers’ actions would chill or silence a person of ordinary firmness; however, 12 he alleges that he was harmed, and “harm that is more than minimal will almost always have a 13 chilling effect.” Rhodes, 408 F.3d at 568 n.11. 14 V. CONCLUSION AND ORDER 15 For the reasons set forth above, Plaintiff’s complaint states cognizable claims against 16 Defendants Munoz, Carillo, Harris, Masferrer, and Sergeant John Doe, but not against the 17 remaining defendants. Because he may be able to cure the deficiencies in his pleading, the Court 18 grants Plaintiff leave to amend. Within 21 days of the date of service of this order, Plaintiff shall 19 file a first amended complaint curing the deficiencies identified herein or, in the alternative, 20 notify the Court that he wishes to proceed only on the claims found cognizable. If Plaintiff no 21 longer wishes to pursue this action, he may file a notice of voluntary dismissal. If Plaintiff needs 22 an extension of time to comply with this order, he shall file a motion seeking an extension no 23 later than 21 days from the date of service of this order. 24 Plaintiff is informed that an amended complaint supersedes the original complaint. Lacey 25 v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, a first amended complaint must 26 be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. The 27 Court provides Plaintiff with an opportunity to amend his complaint to cure the deficiencies 1 unrelated claims in an amended complaint. Accordingly, the Court ORDERS: 2 1. Plaintiff is GRANTED leave to file a first amended complaint; 3 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 4 3. Within 21 days of the date of service of this order, Plaintiff shall file one of the 5 following three items: 6 a. a first amended complaint curing the deficiencies identified in this order, or 7 b. a notice that he does not wish to file a first amended complaint and instead 8 wishes to (1) proceed only on his claims of excessive force or failure to 9 intercede against Defendants Munoz, Carillo, Harris, Masferrer, and Sergeant 10 John Doe; retaliation against Defendants Munoz and Carillo; and sexual 11 assault against Defendants Harris and Masferrer, and (2) dismiss the remaining 12 claims and defendants, or 13 c. a notice of voluntary dismissal of this entire case. 14 If Plaintiff fails to comply with this order, the Court will recommend that this action 15 proceed only on the claims found cognizable herein and that all other claims and defendants 16 be dismissed with prejudice. 17 IT IS SO ORDERED. 18 19 Dated: July 7, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27