(PC) Gonzalez v. Newsom ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO AMADOR GONZALEZ, No. 2:17-CV-0176-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action 18 pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff’s sixth amended complaint, 19 ECF No. 60. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 In the sixth amended complaint, as with the fifth amended complaint, Plaintiff 10 names “GAVIN NEWSOM, ET AL.” ECF No. 60, pg. 1. In Section I of the sixth amended 11 complaint describing the parties, Plaintiff refers to “[e]ach and every defendant,” but does not 12 specifically name each defendant sued. Id. at 1-2. Throughout the sixth amended complaint, 13 Plaintiff alleges various claims against “all defendants” or against “named prison guards” and 14 “named and unnamed prison healthcare workers.” See generally id. 15 The only references to specific named individuals are in Section III of the sixth 16 amended complaint describing the “facts common to all claims.” Id. at 2-6. Plaintiff alleges: 17 13. The principle abusers in this case were Officer Burke, Officer Cross, Officer Valine, Office[r] Lewis, Lieutenant Bales, Captain 18 Clough, Office[r] Kinn, Office[r] Leech, Kevin Grinde, and Officer Spark. For his part, Dr. Bodenhamer withheld pertinent medical information from 19 Plaintiff that materially added to Plaintiff’s injuries and suffering. Dr. Bodenhamer, as a medical professional, had a duty to disclose all medical 20 information to Plaintiff, his patient. 21 Id. at 3. 22 Despite being named in the caption of the sixth amended complaint, Plaintiff does not list 23 Defendant Newsom here and the sixth amended complaint contains no allegations relating to 24 Defendant Newsom. 25 Plaintiff then describes Defendants’ alleged conduct. According to Plaintiff, on 26 March 10, 2016, he notified his primary clinician, Dr. Ross, that he feared for his safety because 27 “he was aware that five officers at A-2 P.S.U. Sacramento were engaging in illegal beatings of 28 fellow inmates.” Id. Plaintiff claims that on April 12, 2016, Defendants Burke and Cross entered 1 Plaintiff’s cell to conduct a search. See id. Out of fear, Plaintiff requested that a supervisor in 2 charge or a lieutenant be present during the cell search. See id. Plaintiff states that Defendant 3 Bales was the lieutenant on duty at the time. See id. Plaintiff asserts that, despite his request, 4 Defendant Cross refused to call a supervisor. See id. 5 Plaintiff next claims that, seemingly displeased with Plaintiff’s request, Defendant 6 Cross gathered additional officers – Defendants Burke, Valine, and Lewis – and returned to 7 Plaintiff’s cell. See id. Plaintiff’s cell door was opened and Defendant Cross placed Plaintiff’s 8 left hand in handcuffs and “began to punch him in the left side of his body.” Id. at 3-4. Plaintiff 9 claims Defendant Cross then placed Plaintiff in a “full nelson” hold, thereby exposing Plaintiff’s 10 right side and back. Id. at 4. Plaintiff states that, at this point, Defendant Valine, Lewis, and 11 Burke “took turns kicking Plaintiff in the back and rib area of his body with their boots.” Id. 12 Plaintiff next alleges that the “torture and abuse then continued by Plaintiff being 13 dragged to the sink area where Officer Cross held Plaintiff in the position and then Officer Burke 14 ordered Officer J. Lewis. . . to pour urine and feces mixtures into his [Plaintiff’s] mouth.” Id. 15 Plaintiff claims that Defendant Lewis then kicked Plaintiff in his testicles. See id. Plaintiff was 16 taken to the medical facility where unnamed medical staff allegedly refused to provide treatment 17 for his injuries. See id. According to Plaintiff, medical staff failed to accurately record the nature 18 and extent of Plaintiff’s injuries in an attempt to cover up the incident. See id. at 5. 19 Plaintiff claims that, following this but prior to being returned to his cell, 20 Defendant Clough tied Plaintiff down on a gurney with sheets whereupon Defendants Kinn and 21 Leech “started hitting the restrained Plaintiff in the face without cause or justification.” Plaintiff 22 next claims that Defendant Walker – who is not listed in paragraph 13 outlined above – “was 23 pressing down on Plaintiff’s knee area inward in an apparent attempt to break his knee.” Id. 24 Plaintiff next alleges that, upon being returned to his cell, Defendant Byers – also 25 not listed in paragraph 13 – “grabbed Plaintiff under his jaw with both hands and began pulling 26 him upwards with great pressure, inflicting further unnecessary pain and suffering.” Id. 27 According to Plaintiff, Defendant Byers told Plaintiff “you’re getting everything you deserve.” 28 Plaintiff contends this statement was made in the presence of Defendant Clough, who did nothing 1 to intervene. See id. Plaintiff states that his injuries were compounded when, after being returned 2 to his cell, Defendant Lewis “squeezed Plaintiff’s testicles and hit him in the testicular area with a 3 metal detector. . . .” Id. Plaintiff adds that, at this point, Defendant Cross removed Plaintiff’s 4 handcuffs, sat him on the ground, and began punching Plaintiff in the face. See id. Plaintiff 5 states that Defendant Cross told Plaintiff “I’ve been waiting to fuck you up.” Id. 6 Plaintiff states he filed a “Sick Call Slip” seeking treatment for his injuries and 7 was provided an x-ray. See id. at 5-6. Plaintiff claims that Defendant Bodenhamer, a prison 8 doctor, confirmed a fracture of Plaintiff’s eighth rib, but withheld the fact that Plaintiff had also 9 fractured his back. See id. at 6. Plaintiff asserts this conduct indicates deliberate indifference. 10 See id. 11 Next, Plaintiff alleges that Defendant Spark (also referred to as “Sparks”) 12 interfered with Plaintiff’s right to file a complaint in connection with the foregoing. See id. 13 According to Plaintiff, Defendant Spark threatened to charge him with a rules violation if Plaintiff 14 were to file a complaint. See id. 15 According to Plaintiff, the events alleged took place while he was incarcerated at 16 California State Prison – Sacramento. See ECF No. 1, pg. 4 (original complaint). 17 18 II. DISCUSSION 19 The following individuals are named and/or referenced in the sixth amended 20 complaint: (1) Newsom, the Governor of the State of California; (2) Burke, a Correctional 21 Officer; (3) Cross, a Correctional Officer; (4) Valine, a Correctional Officer; (5) Lewis, a 22 Correctional Officer; (6) Bales, a Lieutenant; (7) Clough, a Captain; (8) Kinn, a Correctional 23 Officer; (9) Leech, a Correctional Officer; (10) Grinde; (11) Spark, a Correctional Officer; (12) 24 Walker, a Correctional Officer; (13) Byers, a Correctional Officer; and (14) Bodenhamer, a 25 prison doctor. Based on the facts alleged in the complaint, the Court finds that Plaintiff’s sixth 26 amended complaint states cognizable claims against the following 11 defendants: Burke, Cross, 27 Valine, Lewis, Clough, Kinn, Leech, Walker, Byers, Bodenmaner, and Spark. 28 / / / 1 The Court finds, however, that Plaintiff fails to state a claim against Defendants 2 Newsom, Grinde, or Bales. Plaintiff names Defendant Newsom, the Governor of the State of 3 California, in the caption of the sixth amended complaint but does not reference this defendant 4 elsewhere. Defendant Bales is referenced only to the extent Plaintiff states Bales was the 5 supervising Correctional Lieutenant at the time of the April 12, 2016, cell search. Defendant 6 Grinde is referenced only in paragraph 13 but not elsewhere. 7 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 8 connection or link between the actions of the named defendants and the alleged deprivations. See 9 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 10 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 11 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 12 an act which he is legally required to do that causes the deprivation of which complaint is made.” 13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 14 concerning the involvement of official personnel in civil rights violations are not sufficient. See 15 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 16 specific facts as to each individual defendant’s causal role in the alleged constitutional 17 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 18 Here, Plaintiff has, despite numerous attempts at amending the complaint and 19 despite being represented by counsel, failed to allege a causal connection between Defendants 20 Newsom, Bales, or Grinde and the constitutional violations about which he complains. Plaintiff 21 will be provided an additional opportunity to amend the complaint to state facts showing how 22 these three defendants allegedly violated his constitutional or statutory rights. 23 24 III. CONCLUSION 25 Because it is possible that the deficiencies identified in this order may be cured by 26 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 27 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 28 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 2 | prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 3 || amended complaint must be complete in itself without reference to any prior pleading. See id. 4 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 5 | conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 6 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 7 | each named defendant is involved, and must set forth some affirmative link or connection 8 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 9 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 Because the complaint appears to otherwise state cognizable claims, if no amended 11 complaint is filed within the time allowed therefor, the Court will issue findings and 12 || recommendations that the claims identified herein as defective be dismissed, as well as such 13 | further orders as are necessary for service of process as to the cognizable claims. 14 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a seventh 15 |} amended complaint within 30 days of the date of service of this order. Plaintiff is cautioned that 16 | additional leave to amend will be afforded only on a showing of good cause. 17 18 | Dated: August 4, 2021 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28