(PC) Johnson v. Frauenheim ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LACEDRIC WILLIAM JOHNSON, ) Case No.: 1:18-cv-01477-AWI-BAM (PC) ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S MOTION TO ) ADD A PARTY 13 v. ) SCREENING ORDER GRANTING PLAINTIFF 14 SCOTT FRAUENHEIM, et al., ) LEAVE TO FILE AN AMENDED COMPLAINT ) OR NOTIFY COURT OF WILLINGNESS TO 15 Defendants. ) PROCEED ON COGNIZABLE CLAIMS ) 16 ) (ECF Nos. 1, 7) ) 17 ) THIRTY (30) DAY DEADLINE 18 Plaintiff LaCedric William Johnson is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. On October 26, 2018, Plaintiff initiated this 20 action by filing a complaint with this Court. (ECF No. 1.) Before the Court could screen Plaintiff’s 21 complaint, Plaintiff filed a motion to add a party. (ECF No. 7.) 22 Plaintiff’s motion to add a party, (ECF No. 7), is granted. See Fed. R. Civ. P. 15(a) (a party 23 may amend once as a matter of right, but must seek leave of court for further amendments). 24 Therefore, R. Newton is added as a defendant in this action and the Court will evaluate the allegations 25 made against R. Newton. 26 Plaintiff’s complaint, filed on October 26, 2018, is currently before the Court for screening. 27 (ECF No. 1.) 28 /// 1 I. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 5 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 6 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 7 1915(e)(2)(B). 8 A complaint must contain “a short and plain statement of the claim showing that the pleader is 9 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 10 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 11 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 13 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 14 2002). 15 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 16 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 17 (9th Cir. 2012). To survive screening, Plaintiff’s claims must be facially plausible, which requires 18 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for 19 the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 20 Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts 21 that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 22 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 23 II. Summary of Plaintiff’s Allegations 24 Plaintiff is currently housed at California State Prison, Solano. Plaintiff alleges that the events 25 at issue took place at Pleasant Valley State Prison (“PVSP”). Plaintiff names the following 26 defendants: (1) Scott Frauenheim, Warden of Pleasant Valley State Prison; (2) Correctional Sergeant 27 J. Benavides; (3) Correctional Officer J. Bejinez; (4) Correctional Officer S. Deshazo; (5) Correctional 28 Officer D. Erickson; (6) Correctional Officer S. Espinoza; (7) Licensed Vocational Nurse R. Hansen; 1 (8) Correctional Officer J. Hill; (9) Registered Nurse Ryuan Hoggard; (10) Correctional Officer C. 2 Kennedy; (11) Correctional Officer W. Leon; (12) Licensed Vocational Nurse M. Liebold; (13) 3 Correctional Officer S. Lopez; (14) Correctional Officer G. Luna; (15) Correctional Officer M. 4 Ramirez; (16) Correctional Officer A. Salas; (17) Correctional Officer M. Santos; (18) Licensed 5 Vocational Nurse M. Sharp; (19) Correctional Officer E. Trinidad; (20) M. George1; and (21) R. 6 Newton. 7 Plaintiff alleges as follows: Custody staff at PVSP have a longstanding practice of using pat- 8 down and unclothed body searches to initiate assaults against targeted inmates as a means of 9 intimidation, harassment, and retaliation resulting in false 115 Rules Violation Reports alleging 10 “battery of peace officer” and disciplinary sanctions, i.e., administrative segregation placement, 11 Security Housing Unit term, increased classification score, forfeiture of good-time/worktime credits, 12 possible transfer and referral to the District Attorney for prosecution. At the time of this incident, 13 Plaintiff fit the criteria of a “targeted inmate” because he was actively pursuing a conversion action in 14 the Superior Court of California, County of Fresno against two PVSP prison guards who intentionally 15 discarded legal files to five active cases, religious property, and personal property. 16 On January 29, 2014, at 0930 hours, Facility Bravo (Facility B) yard Defendant Benavides was 17 conducting a controlled yard release with random pat-down searches being conducted by 18 approximately ten correctional officers. During the Building 1 yard release, Plaintiff forgot his 19 identification card in his cell. Since inmates must carry their identification card on their person, 20 Plaintiff summoned Defendant Newton, the Building 1 Control Tower Officer, for an unlock, 21 explaining that he had forgotten his identification card in his cell and requesting an unlock to gain 22 access. Defendant Newton denied Plaintiff’s request. 23 Defendant Santos, the Building 1 First Tier Floor Officer, ordered Plaintiff to “strip-out” in the 24 lower B section shower. Plaintiff took off all of his clothes except for his boxers, gave them to 25 Defendant Santos and Defendant Leon, the Second Tier Officer, along with his legal folder, and stood 26 27 1 Plaintiff does not identify M. George as a defendant in the complaint’s caption or list of defendants. However, the Court 28 1 waiting until the search of his clothing and legal folder was completed. Defendant Santos approached 2 the shower and told Plaintiff, “Give me your boxers,” just as Defendant Luna and Defendant Espinoza, 3 a female officer, entered the building and looked towards the shower and the ongoing search. (ECF 4 No. 1, at 7.) Plaintiff stated, “One moment out of respect for the women, I’m Muslim.” (Id.) 5 Defendant Santos then opened the shower gate and barked “Cuff Up! Cuff Up! Get Down!” (Id.) 6 When Plaintiff asked what he had done, Defendant Santos emptied a canister of O.C. pepper spray 7 directly in Plaintiff’s face, blinding him. Plaintiff stumbled blindly to the back of the shower, turned 8 the water on, and rinsed his eyes, with his back to Defendant Santos. Defendant Santos then entered 9 the shower and began striking Plaintiff across the knee of his left leg with rapid, hard successive blows 10 with his MEB expandable baton, which caused Plaintiff’s surgically repaired knee to weaken, become 11 painful, and a wound on the knee to open up and bleed. When Plaintiff turned around, Defendant 12 Santos left the shower. 13 At that point, Defendant Leon emptied a canister of O.C. pepper spray into Plaintiff’s face, 14 blinding Plaintiff and causing Plaintiff to inhale mace through his nose, choking Plaintiff, as 15 Defendant Leon yelled for Plaintiff to “Get the fuck down!” (Id.) Plaintiff turned, placed his head 16 under the water to rinse his eyes, due to the burning and blindness, and attempted to comply with the 17 order to prone out on the shower, but pain from the injured knee and leg made compliance difficult. 18 Defendant Santos entered the shower for a second time and began beating Plaintiff across the arm, 19 wrist, elbow, and body with his MEB baton. When Plaintiff stood up and raised his arms to protect 20 himself from blows to his head, Defendant Santos ran out of the shower again. 21 As Plaintiff was being beaten by Defendant Santos, Defendant Espinoza made a call over her 22 radio of a disturbance in Building 1. All inmates were ordered down. Defendant Benavides and 23 approximately 10 other officers who were outside of the building entered the building, waving batons 24 and shaking up their canisters of O.C. pepper spray. The officers formed a skirmish line in front of the 25 shower, yelling “Get down!” (Id. at 8.) Defendant Santos then sprayed Plaintiff in the face with 26 another canister of O.C. pepper spray. Further, the officers who had responded to Defendant 27 Espinoza’s call also emptied numerous canisters of O.C. pepper spray directly into Plaintiff’s face, 28 further blinding, burning, and choking Plaintiff, as they yelled “Get down!” (Id.) As Plaintiff 1 attempted to prone out in a pool of pepper spray, Defendant Santos entered the shower for a third time 2 and began beating Plaintiff across the arms and legs with his MEB baton. Defendant Santos then 3 grabbed Plaintiff by the ankle and dragged Plaintiff out of the shower and onto the dayroom floor. 4 Defendant Hill and Defendant Salas then jumped on Plaintiff’s back, causing pain, and both 5 began punching Plaintiff in the face and head. Plaintiff’s head bounced off of the concrete floor 6 approximately three times. Out of fear, Plaintiff attempted to protect his left wrist, which was swollen, 7 throbbing, and disfigured, by placing it under his torso. While Plaintiff was using his right arm to 8 protect his head and face from punches to the head and face by Defendants Hill and Salas, Defendant 9 Benavides grabbed his right hand and wrist and held it. Defendants Benavides, Luna, Lopez, and 10 Salas were punching and pulling on Plaintiff’s wrist, while yelling, “Stop resisting!” (Id. at 9.) At no 11 time did any of the surrounding officers intervene to stop the beating of Plaintiff. 12 When an unknown officer began kicking Plaintiff in the genitalia, Plaintiff began twisting his 13 hips, making his genitalia a moving target, to avoid further contact. Other officers began kicking and 14 stomping Plaintiff’s legs and torso until Plaintiff became weak. Defendant Kennedy continued 15 kicking Plaintiff. Defendants Benavides, Hill, Lopez, Luna, and Salas continued punching Plaintiff 16 and pulling on Plaintiff’s harms. Defendant Hill stated: “He’s screaming like a bitch.” (Id.) 17 Plaintiff’s wrists were then cuffed behind his back, extremely tight. Defendant Benavides grabbed 18 Plaintiff’s ankles and Defendant Ramirez placed flex cuffs on Plaintiff’s ankles, tightly, which dug 19 into Plaintiff’s flesh, causing bleeding and pain. 20 Medical staff were summoned. Defendants Hoggard, Hansen, Liebold, and Sharp brought a 21 gurney. Defendants Benavides, Santos, and Ramirez lifted Plaintiff, placed Plaintiff in a stokes litter, 22 and then placed him on the gurney. Defendant Salas took Plaintiff’s boxer shorts off and placed the 23 pepper-spray soaked underwear over Plaintiff’s head, burning Plaintiff’s face. Plaintiff was naked in 24 the presence of Defendants Hansen, Liebold, Sharp, and Espinoza, all women. Nothing was placed 25 over Plaintiff to cover his genitalia. 26 Defendants Bejinez and Trinidad then wheeled Plaintiff, naked, on the gurney across the yard 27 in the presence of the inmate population, custody staff of both genders, and support services staff. 28 /// 1 Plaintiff was taken to the Facility B medical clinic, where he arrived at approximately 0945 hours. 2 Defendant Deshazo was the assigned medical triage coverage officer. 3 Defendants Bejinez and Trinidad lifted Plaintiff off of the gurney in the stokes litter and 4 slammed Plaintiff to the ground in the holding tank. The already tight handcuffs that were under 5 Plaintiff’s body clicked even tighter, which caused the handcuffs to dig deeper into Plaintiff’s injured 6 wrist, flesh, and bone, causing excruciating pain. Plaintiff asked Defendant Deshazo to loosen, or 7 remove, the cuffs and to summon medical staff for treatment. However, Defendant Deshazo stated 8 “No. And shut up!” while Plaintiff was screaming in pain, hyperventilating, coughing, and sweating. 9 Defendant Deshazo placed a spit mask hood over Plaintiff’s head, in violation of CDCR’s Department 10 Operation Manual, which forbids placement of a spit hood on an inmate suffering from pepper spray 11 exposure. Plaintiff was showing apparent signs of respiratory distress and weakness from the beating. 12 Plaintiff was choking, gagging for air, hyperventilating, sweating, phlegm and mucus was sticking to 13 the spit hood mask, which clogged up the mask and caused Plaintiff to suffocate and fight for air. 14 Plaintiff’s lungs are damaged by Valley Fever spores. Plaintiff was in and out of consciousness. 15 Defendant Deshazo disregarded Plaintiff’s pleas for help while the hand and flex ankle cuffs were 16 cutting into Plaintiff’s flesh, the spit hood was restricting the oxygen to Plaintiff’s lungs and brain, 17 Plaintiff was burning all over from excessive pepper spray, Plaintiff’s head was throbbing, and 18 Plaintiff was bleeding and swelling. Defendant Deshazo just ignored Plaintiff, even though he was 19 within 10 feet of Plaintiff. At no time did Defendant Deshazo cover up Plaintiff’s genitalia. Instead, 20 Defendant Deshazo left Plaintiff hog-tied, naked, and suffering for an hour. In fact, Defendant 21 Deshazo opened the door to medical and let another inmate in, who witnessed Plaintiff, naked and 22 suffering on the floor. 23 All inmates were ordered to lock up for a yard recall over the PA system. Another inmate, 24 who witnessed Plaintiff being wheeled across the yard naked, also witnessed the responding officers 25 exit Building 1 high-fiving and fist bumping. 26 At approximately 1045 hours, Defendants Bejinez and Trinidad had a conversation with 27 Defendant Benavides at the Facility B medical entrance. Then, Defendants Bejinez and Trinidad 28 grabbed a gurney, placed Plaintiff on the gurney, and wheeled him, still naked, across the yard to the 1 gym for decontamination. Defendants Bejinez and Trinidad removed the spit mask. After one of the 2 Defendants stated that the showers were not working, they left Plaintiff lying in the stokes litter on the 3 gurney suffering and sat down and held a conversation among themselves. Defendant Benavides 4 entered the gym told Defendants Bejinez and Trinidad to remove Plaintiff’s cuffs, take Plaintiff out of 5 the stokes litter, and place Plaintiff on the bench. Plaintiff could not hold himself up and was slumped 6 over because he was weak and could not support himself with his injured arm, wrist, knees, or leg. 7 Defendants Bejinez and Trinidad then just sat back down and resumed their personal conversation. 8 At that point, Gomez, who is not a defendant, entered the gym, assessed the situation, filled a 9 bucket with water from a sink, and poured it over Plaintiff’s head. After Gomez poured a second 10 bucket of water over Plaintiff, Plaintiff requested that Gomez pour a third bucket of water over him 11 because his penis was burning. Plaintiff informed Gomez that the burning was unbearable. However, 12 Gomez stated that: “You’ll be better off without water, water agitates the chemical.” Plaintiff’s eyes 13 were never rinsed. 14 Defendant Hoggard then entered the gym, stopped approximately ten feet away from Plaintiff, 15 wrote something down on a piece of paper, and exited the gym. Plaintiff assumed that Defendant 16 Hoggard, who is a nurse, was going to return to provide medical care, but Defendant Hoggard did not. 17 Instead, as soon as Defendant Hoggard exited the gym, Defendant Benavides entered the gym, told 18 Defendants Bejinez and Trinidad to prepare Plaintiff for transport to Delta-4 ad-seg (administrative 19 segregation) unit, and gave Plaintiff a pair of boxer shorts. Plaintiff was unable to put the boxer shorts 20 on without assistance. 21 Defendant Hoggard’s CDCR 7219 Injury/Assessment Medical Report of Injuries only 22 indicated that Plaintiff had a scratch/abrasion on his left knee and O.C. pepper spray on his torso. 23 Plaintiff asserts that this orchestrated plan of action between Defendants Benavides and Hoggard to 24 minimize Plaintiff’s documented injuries was done in order to isolate Plaintiff in ad-seg and to prevent 25 Plaintiff from getting medical care, which would have opened up a serious investigation into excessive 26 force and the completion of an excess force video deposition as required by prison regulations. 27 At approximately 1200 hours, Defendants Bejinez and Trinidad had to carry Plaintiff into the 28 Delta 4 segregation unit by putting their shoulders under his arms in order to drag Plaintiff. 1 Plaintiff was found unresponsive in Cell #127 at 1600 hours by a Delta 4 unit officer. After 2 officers entered the cell, Delta 4 unit medical staff, Licensed Vocational Nurse D. Hall was 3 summoned. After Nurse Hall ascertained that Plaintiff’s injuries were severe and his vitals were high, 4 Nurse Hall made arrangements for Plaintiff to be taken to PVSP Correctional Treatment Center 5 (“CTC”). Plaintiff’s visible signs of injury were assessed and documents by Registered Nurse K. 6 Bradley on a CDCR 7219 Injury/Assessment Report. Plaintiff was evaluated by Dr. Ola, given a shot 7 for pain management, and then sent to Community Regional Medical Center in Fresno. Plaintiff was 8 admitted to the hospital, monitored throughout the night, and then released on January 30, 2014. 9 On January 30, 2014, Plaintiff was housed at PVSP CTC for medical evaluation and 10 monitoring. The physical signs of trauma to Plaintiff’s head and body were more prominent. 11 Plaintiff’s eyes were black and blue, he had broken blood vessels in both eyes, his left wrist was 12 deformed and swollen, he had a loss of feeling in his left hand, he had a numb and tingling sensation 13 in his left extremities, a bruised left bicep and rib, his left knee was swollen with two lacerations, his 14 left shin was swollen, he had a right inside ankle gash, an intense headache and pain all over his body, 15 and his eyes and body were burning from pepper spray. Facility B. Captain A. Shimmins personally 16 came to CTC, visually observed Plaintiff, issued Plaintiff a CDCR 114-D Lockup order, and told 17 Plaintiff that Plaintiff would be released to ad-seg once released by medical and that Plaintiff would be 18 issued a CDCR 115 Rules Violation Report for “Battery on a Peace Officer.” 19 On January 31, 2014, at 1000 hours, Plaintiff was allowed to take a shower. After about 20 20 minutes, the effects of the pepper spray fully wore off. 21 On February 3, 2014, at 1000 hours, a doctor inquired about Plaintiff’s pain level based on 22 Plaintiff’s apparent head and eye injuries. Plaintiff told the doctor that he felt dizzy, severe headache, 23 and blurred vision. The doctor prescribed Plaintiff ibuprofen, acetaminophen, and made Plaintiff a 24 specialty clinic appointment to see optometry. 25 At 1100 hours on February 3, 2014, Defendant Santos, escorted by I. Gonzalez, a defendant in 26 Plaintiff’s Fresno County Superior Court conversion action, case number 13CECG02602, provided 27 Plaintiff with a CDCR 1083 Property Inventory Receipt. After Plaintiff noticed that there was no 28 documentation of his legal files, books, and religious materials, he refused to sign the property receipt. 1 On February 5, 2014, Defendant Santos, along with A. Martinez, another defendant in 2 Plaintiff’s Fresno County Superior Court conversion action, case number 13CECG02602, brought 3 Plaintiff’s property to Delta 4 unit in order to bring Plaintiff’s property within compliance of the 6 4 cubic feet property guideline policy. Plaintiff alleges that it was apparent that some of his property 5 was already missing. Defendant Santos and Martinez issued an ultimatum: “Throw it away or send it 6 home,” and began discarding Plaintiff’s property. (Id. at 14.) 7 On February 6, 2014, Plaintiff was brought before the Initial Classification Committee (“ICC”) 8 in Delta 4 unit for ad-seg review. The ICC consisted of, but was not limited to, Defendant Warden 9 Frauenheim, Chief Deputy Warden R. Fisher, and Facility B Captain Shimmins. Plaintiff was 10 informed that he would be held in ad-seg pending charges and adjudication of CDCR 115 Rules 11 Violation Report, Log Number #14-FB-01-080, for “Battery on a Peace Officer Resulting in the Use 12 of Force” on January 29, 2014. When Plaintiff stated that he was assaulted by staff and the reports are 13 falsified, Fisher told Plaintiff that Plaintiff should save his statements for a 602 grievance or the Rules 14 Violation Report hearing. 15 On February 7, 2014, Plaintiff filed a health care staff complaint against Defendant Hoggard 16 for leaving Plaintiff in the hands of custody staff to suffer from his various injuries and pepper spray 17 exposure and not providing any medical care. 18 On February 12, 2014, Plaintiff was issued CDCR 115 Rules Violation Report, Log Number 19 #14-FB-01-080, for “Battery on a Peace Officer Resulting in the Use of Force.” The Rules Violation 20 Report was signed by Defendant Santos and dated for January 29, 2014. At this point, Plaintiff 21 became aware of the extent of Defendant Santos’ falsified allegations in his report to cover up the 22 excessive force. Defendant Santos’ false misrepresentation were presented to the Fresno County 23 District Attorney and presented at the Rules Violation Report disciplinary hearing. 24 On February 18, 2014, Plaintiff was seen by the mental health department and prescribed 25 Citalopram for severe depression and anxiety and weekly therapy sessions due to the trauma Plaintiff 26 suffered. Also, on February 18, 2014, Plaintiff was taken to the specialty clinic for an optometry 27 examination. It was ascertained that Plaintiff suffered eye damage from the assault and a bi-focal was 28 added to his prescription. Plaintiff also suffered a stigmatism. 1 On February 19, 2014, Plaintiff was issued a CDCR 837 Crime/Incident Report, Log # PVSP- 2 FBP-14-01-0022, dated 1/29/14, and which contained staff reports from Defendants Benavides, 3 Bejinez, Erickson, Espinoza, Hill, Kennedy, Leon, Lopez, Luna, Newton, Ramirez, Salas, Santos, 4 Hansen, Hoggard, Liebold, and Sharp. Plaintiff alleges that this was the first opportunity he had to 5 view the coordinated cover up that followed the assault. Plaintiff states that the reports were falsified 6 in order to cover up the systematic brutality by guards. 7 On March 11, 2014, Sergeant Clark, along with Correctional Officer Ruggles, conducted an 8 excessive force video deposition in Delta 4 unit at 1925 hours. On March 18, 2014, Sergeant Clark 9 and Correctional Officer Ruggles conducted a second excessive force video deposition because they 10 “ran out of tape on the last one.” (Id. at 16.) 11 On March 20, 2014, Plaintiff sent an excessive force staff complaint to Defendant Frauenheim. 12 Also, on March 20, 2014, Plaintiff requested a voluntary dismissal of Fresno County Superior 13 Court Case No. 13CECG02602 because he was suffering from severe depression, severe headaches, 14 fear of further retaliation, and inadequate law library provisions that limited him to three items of legal 15 resources per week. Additionally, Plaintiff alleges that Defendant Benavides denied Plaintiff two 16 court-ordered telephone court conference calls in Case No. 13CECG02602, hindering Plaintiff’s 17 access to the court on December 23, 2013 and January 6, 2014. On April 23, 2014, the voluntary 18 dismissal without prejudice of Case No. 13CECG02602 was granted. 19 Also, on April 23, 2014, Plaintiff’s staff complaint (PVSP 14-0683) against Defendant Santos 20 for falsified reports, assault, and battery was granted in part. 21 On September 18, 2014, medical staff issued Plaintiff a second pair of eye-wear to conclude 22 the correction of the damage to his eyes caused by the January 29, 2014 assault. 23 In September 2015, Plaintiff needed an operation to remove a lipoma tumor lesion in his right 24 lateral flank, where Defendant Kennedy and other officers kicked Plaintiff in the rib area with military 25 style boots. 26 On September 22, 2015, Plaintiff suffered temporary blindness in his right eye. He was 27 diagnosed with ocular migraines as a result of defendants beating Plaintiff in the head. 28 /// 1 Plaintiff asserts that “Defendants” are being sued in their individual capacity and their official 2 capacity. 3 Plaintiff seeks $5,000,000.00 in compensatory damages for each defendant in each cause of 4 action, $5,000,000.00 in punitive damages for each cause of action, declaratory relief, costs of suit, 5 and/or attorney’s fees. 6 III. Discussion 7 A. Federal Rule of Civil Procedure 8 8 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 9 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement 10 must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which 11 it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal quotation 12 marks omitted). 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 15 (citation omitted). This is because, while factual allegations are accepted as true, legal conclusions are 16 not. Id.; see also Twombly, 550 U.S. at 556-57; Moss, 572 F.3d at 969. Therefore, Plaintiff must set 17 forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ 18 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 19 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 20 678 (citations and internal quotation marks omitted). 21 Here, in the “Cause of Action” portion of Plaintiff’s complaint, many of Plaintiff’s allegations 22 are ascribed to “Defendants.” Since Plaintiff fails to identify which specific Defendants he is referring 23 to when he states “Defendants,” Plaintiff’s complaint fails to give fair notice of all of the allegations 24 and claims directed against each individual Defendant. Gauvin v. Trombatore, 682 F. Supp. 1067, 25 1071 (N.D. Cal. 1988) (“Plaintiff must allege the basis of his claim against each defendant to satisfy 26 Federal Rule of Civil Procedure 8(a)(2)[.]” (italics added)); see also Van Dyke Ford, Inc. v. Ford 27 Motor Co., 399 F. Supp. 277, 284 (D. Wis. 1975) (“Specific identification of the parties to the 28 activities alleged by the plaintiffs is required … to enable the defendant to plead intelligently.”). . 1 B. Linkage Requirement 2 The Civil Rights Act under which this action was filed provides: 3 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities 4 secured by the Constitution ... shall be liable to the party injured in an action at law, suit 5 in equity, or other proper proceeding for redress. 6 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the 7 actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. 8 Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit 9 has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the 10 meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts or 11 omits to perform an act which he is legally required to do that causes the deprivation of which 12 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Here, Plaintiff fails to adequately link Defendant M. George to any constitutional violation 14 suffered by Plaintiff. While Plaintiff identifies Defendant George as the Registered Nurse supervisor 15 and alleges that Defendant George was deliberately indifferent to Plaintiff’s medical care, health, and 16 safety, there are no factual allegations specifically asserting what Defendant George did, or did not do, 17 and demonstrating a link between Defendant George’s actions or omissions and the resulting 18 deprivation of Plaintiff’s constitutional rights. Therefore, Plaintiff has failed to allege any cognizable 19 claim against Defendant George. 20 C. Official Capacity 21 Plaintiff asserts that he is suing each of the named Defendants in both their individual and 22 official capacities. Plaintiff seeks monetary damages and declaratory relief against each of the named 23 Defendants. 24 “Suits against state officials in their official capacity … should be treated as suits against the 25 State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 26 (9th Cir. 2010) (treating prisoner’s suit against state officials in their official capacities as a suit 27 against the state of California). An official capacity suit “represent[s] only another way of pleading an 28 action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 1 (1985) (citation omitted). Such a suit “is not a suit against the official personally, for the real party in 2 interest is the entity.” Id. at 166. 3 “The Eleventh Amendment bars suits for money damages in federal court against a state, its 4 agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public Safety, 488 5 F.3d 1144, 1147 (9th Cir. 2007). Therefore, Plaintiff’s claim for monetary damages against all of the 6 named Defendants in their official capacity is barred by the Eleventh Amendment. 7 Further, while the Eleventh Amendment does not bar claims for prospective injunctive relief 8 against a state official who is sued in their official capacity, Plaintiff does not seek any prospective 9 injunctive relief against any named Defendant in his complaint. Will v. Michigan Dep’t of State 10 Police, 491 U.S. 58, 92 (1989). Additionally, even if Plaintiff were seeking prospective injunctive 11 relief, Plaintiff’s injunctive relief claim would be moot because Plaintiff has been transferred from 12 PVSP and he has not demonstrated that there is a reasonable expectation that he will be transferred 13 back to PVSP. Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam); see also Andrews 14 v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). 15 Accordingly, Plaintiff has failed to state a cognizable official capacity claim against any named 16 Defendant. 17 D. Supervisory Liability 18 To the extent that Plaintiff seeks to hold Defendant Frauenheim, or any other supervisory 19 Defendant, liable based solely on their supervisory role, he may not do so. 20 Supervisory personnel may not be held liable under section 1983 for the actions or omissions 21 of subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 22 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 23 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en 24 banc). “A supervisor may be liable only if (1) he or she is personally involved in the constitutional 25 deprivation, or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct 26 and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow v. McDaniel, 681 F.3d 978, 27 989 (9th Cir. 2012)) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 28 693 F.3d at 915-16. “Under the latter theory, supervisory liability exists even without overt personal 1 participation in the offensive act if supervisory officials implement a policy so deficient that the policy 2 itself is a repudiation of constitutional rights and is the moving force of a constitutional violation.” 3 Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal 4 quotation marks omitted). Further, a supervisor’s failure to train subordinates may give rise to 5 individual liability under § 1983 where the failure to train amounts to deliberate indifference to the 6 rights of persons with whom the subordinates are likely to come into contact. See Canell v. Lightner, 7 143 F.3d 1210, 1213-14 (9th Cir. 1998). 8 First, Plaintiff alleges that Defendant Frauenheim has a duty as Warden to protect the safety of 9 the inmates at PVSP and a duty to ensure that subordinate staff is properly trained in pepper spray use 10 and decontamination, MEB baton use, use of excessive force and reporting, handcuff and flex cuff 11 application, search procedures, and spit hood application. (ECF No. 1, at 20.) To impose liability 12 under a failure to train theory, a plaintiff must allege sufficient facts that the subordinate’s training was 13 inadequate, the inadequate training was a deliberate choice on the part of the supervisor, and the 14 inadequate training caused a constitutional violation. Id. at 1214; see also City of Canton v. Harris, 15 489 U.S. 378, 391 (1989); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (to establish failure 16 to train, a plaintiff must show that “in light of the duties assigned to specific officers or employees, the 17 need for more or different training is obvious, and the inadequacy so likely to result in violations of 18 constitutional rights, that the policy-makers … can reasonably be said to have been deliberately 19 indifferent to the need.” (citation and internal quotation marks omitted)). “A pattern of similar 20 constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate 21 indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation 22 omitted). 23 Here, while Plaintiff asserts that Defendant Frauenheim had a duty to ensure that subordinate 24 staff were properly trained in a number of different subject areas, Plaintiff has not alleged facts 25 demonstrating that any named subordinate Defendant’s training was inadequate, that the inadequate 26 training was a deliberate choice on Defendant Frauenheim’s part, and that the inadequate training 27 caused the violation of Plaintiff’s constitutional rights. Further, Plaintiff has failed to plead facts 28 showing that Defendant Frauenheim was on notice that his subordinate employees’ training was 1 inadequate because there has been a pattern of similar constitutional violations by untrained, or 2 insufficiently trained, employees. Therefore, Plaintiff has failed to state a cognizable supervisory 3 liability claim for failure to train subordinate employees against Defendant Frauenheim. 4 Second, Plaintiff asserts that Defendant Frauenheim violated his Eighth Amendment right 5 against cruel and unusual punishment by enforcing Department Operations Manual § 51020.16, the 6 spit hood mask policy. Plaintiff has not alleged any facts that the spit hood mask policy is so deficient 7 that the policy itself a repudiation of constitutional rights and is the moving force behind a violation of 8 Plaintiff’s constitutional rights. Indeed, Plaintiff appears to allege that the spit mask policy was 9 violated by the actions of the officers, and there are no factual allegations that Defendant Frauenheim 10 implemented any contra policy. Therefore, Plaintiff has failed to state a cognizable supervisory 11 liability claim based on the spit hood mask policy against Defendant Frauenheim. 12 E. Heck Bar 13 Since Plaintiff has alleged that he was issued a CDCR 115 Rules Violation Report, Log 14 Number 14-FB-01-080, for battery on a peace officer resulting in the use of force, there is a chance 15 that some of Plaintiff’s claims could be barred by the favorable termination rule. (ECF No. 1, at 14- 16 15.) 17 It has long been established that state prisoners cannot challenge the fact or duration of their 18 confinement in a § 1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v. 19 Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar, 20 this exception to § 1983’s otherwise broad scope applies whenever state prisoners “seek to invalidate 21 the duration of their confinement-either directly through an injunction compelling speedier release or 22 indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s 23 custody.” Wilkinson, 544 U.S. at 81; Heck v. Humphrey, 512 U.S. 477, 482, 486–87 (1994); Edwards 24 v. Balisok, 520 U.S. 641, 644 (1997). Thus, “a state prisoner’s [section] 1983 action is barred (absent 25 prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of 26 the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in 27 that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 28 544 U.S. at 81–82. In the prison disciplinary context, the favorable termination rule or Heck bar 1 applies if the “defect complained of by [Plaintiff] would, if established, necessarily imply the 2 invalidity of the deprivation of his good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 3 (1997), and if the restoration of those credits “necessarily” would “affect the duration of time to be 4 served[.]” Muhammad v. Close, 540 U.S. 749, 754 (2004) (per curiam). 5 In this case, while Plaintiff alleges that he was issued a Rules Violation Report for battery on a 6 peace officer resulting in the use of force, Plaintiff does not allege that he was found guilty of the 7 Rules Violation Report and that he lost any good time credits due to the guilty prison disciplinary 8 finding. Therefore, the Court cannot determine that any of Plaintiff’s claims would necessarily imply 9 the invalidity of any deprivation of Plaintiff’s good time credits and/or that restoration of those good 10 time credits would necessarily affect the length of Plaintiff’s sentence. Accordingly, the Court finds 11 that it is not clear from the face of Plaintiff’s complaint that any of Plaintiff’s claims are Heck-barred. 12 F. Excessive Force 13 Plaintiff asserts that certain Defendants violated his Eighth Amendment right against cruel and 14 unusual punishment by using excessive force on him. 15 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 16 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The 17 unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the 18 Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) (citations omitted). Although prison 19 conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, 20 shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) 21 (quotations omitted). 22 For claims of excessive physical force, the issue is “whether force was applied in a good-faith 23 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 24 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] the need for 25 application of force, the relationship between that need and the amount of force used, the threat 26 ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a 27 forceful response.’” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)). The objective 28 component of an Eighth Amendment claim is contextual and responsive to contemporary standards of 1 decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses 2 of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 3 violates contemporary standards of decency, regardless of whether or not significant injury is evident, 4 Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (citing Hudson, 503 U.S. at 9-10) (quotation marks 5 omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). 6 1. Defendants Santos and Leon 7 Plaintiff alleges that, after Defendant Santos ordered Plaintiff to remove his boxer shorts and 8 Plaintiff asked to wait for a moment due to the presence of at least one female, Defendant Santos told 9 Plaintiff to “get down” and when Plaintiff asked what he had done, Defendant Santos sprayed Plaintiff 10 directly in the face with a canister of pepper spray. When Plaintiff went to the back of the shower to 11 rinse his eyes with his back to Defendant Santos, Defendant Santos entered the shower and beat 12 Plaintiff across his left leg with his MEB expandable baton. After Plaintiff turned around and faced 13 Defendant Santos, Defendant Santos left the shower and Defendant Leon sprayed Plaintiff in the face 14 with a canister of pepper spray while yelling for Plaintiff to get down. When Plaintiff attempted to 15 comply with the order to prone out on the ground, Defendant Santos re-entered the shower and hit 16 Plaintiff across the arm, wrist, elbow, and body with his baton. After other officers arrived at the 17 scene of the incident, Defendant Santos sprayed another canister of pepper spray in Plaintiff’s face. 18 As Plaintiff once again attempted to prone out, Defendant Santos entered the shower for a third time, 19 hit Plaintiff’s arms and legs with his baton, and grabbed Plaintiff by the ankle and dragged Plaintiff 20 out of the shower and onto the dayroom floor. 21 These allegations are sufficient to state a cognizable claim for excessive force against 22 Defendants Santos and Leon. 23 2. Defendants Benavides, Bejinez, Erickson, Espinoza, Hill, Kennedy, Lopez, Luna, 24 Ramirez, Salas, and Trinidad 25 Plaintiff alleges that, after Defendant Espinoza made a call over her radio about a disturbance 26 in Building 1, Defendant Benavides and approximately ten responding officers, including Defendants 27 Bejinez, Erickson, Hill, Kennedy, Lopez, Luna, Ramirez, Salas, and Trinidad, entered the building 28 waving batons and shaking up canisters of pepper spray. The Defendants formed a skirmish line in 1 front of the shower, yelling at Plaintiff to get down on the floor. After Defendant Santos sprayed 2 Plaintiff in the face with pepper spray, “the responders” emptied numerous canisters of pepper spray 3 directing into Plaintiff’s face as they yelled for Plaintiff to get down. 4 Further, after Defendant Santos dragged Plaintiff out of the shower, Plaintiff asserts that 5 Defendants Hill and Salas jumped on Plaintiff’s back and began punching Plaintiff in the face and 6 head. Defendants Benavides and Luna held Plaintiff’s arm as Defendants Hill and Salas punched 7 Plaintiff in the head and face. Further, Defendants Benavides, Luna, Lopez, and Salas were punching 8 and pulling on Plaintiff’s wrist while yelling for Plaintiff to stop resisting. “Other officers” began 9 kicking and stomping Plaintiff’s legs and torso until Plaintiff got weak, but Defendant Kennedy 10 continued kicking Plaintiff. Plaintiff’s wrists were then cuffed behind his back extremely tightly and 11 Defendant Ramirez placed flex cuffs on Plaintiff’s ankles, so tightly that they dug into Plaintiff’s 12 flesh, causing pain and bleeding. Plaintiff alleges that Defendants Bejinez and Trinidad lifted Plaintiff 13 off of the gurney in the stokes litter and slammed Plaintiff to the ground in the holding tank. 14 These allegations are sufficient to state a cognizable claim for excessive force against 15 Defendants Benavides, Hill, Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad. 16 However, initially, Plaintiff’s allegations regarding the tight flex cuffs on his ankles does not 17 establish a cognizable excessive force claim against Defendant Ramirez because Plaintiff has not 18 alleged any facts showing that he ever told Defendant Ramirez that the flex cuffs were too tight or that 19 Defendant Ramirez otherwise knew that the flex cuffs were too tight. See Guerrero v. Rivera, No. 20 EDCV 13-0092-JGB (JPR), 2013 WL 878285, at *2 (C.D. Cal. Mar. 8, 2013). Therefore, Plaintiff has 21 not alleged a cognizable claim for excessive force based on tight ankle flex cuffs against Defendant 22 Ramirez. 23 Further, Plaintiff’s allegations that “the responders” emptied numerous canisters of pepper 24 spray into Plaintiff’s face and that “other officers” began kicking and stomping Plaintiff’s legs and 25 torso do not establish that a cognizable excessive force claim because Plaintiff has failed to link any 26 named Defendant to these allegations. Rather, Plaintiff should identify each involved Defendant by 27 name and link each of them to his claim by explaining what each Defendant did, or failed to do, that 28 caused a violation of his constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) 1 (liability may be imposed on individual defendant under § 1983 only if plaintiff can show that 2 defendant proximately caused deprivation of federally protected rights). If Plaintiff is unable to 3 identify the responders at this time, in any amended complaint, he may name them as “Doe” 4 defendants. However, Plaintiff will be required to name the Doe Defendants before service can be 5 completed upon them until Plaintiff has identified them as actual individuals and amended his 6 complaint to substitute names for John Doe. Therefore, Plaintiff has failed to allege a cognizable 7 claim for excessive force against Defendants Erickson, Espinoza, and Ramirez. 8 3. Defendant Deshazo 9 Plaintiff alleges that, when he arrived at the Facility B medical clinic, Defendants Bejinez and 10 Trinidad lifted him off the gurney in the stokes litter and slammed him to the ground in the holding 11 tank. This action caused the already too tight handcuffs under Plaintiff’s body to click tighter and dig 12 deeper into Plaintiff’s injured wrist, causing excruciating pain. Plaintiff alleges that he begged 13 Defendant Deshazo, the assigned medical triage coverage officer, to loosen up or remove the cuffs, but 14 Defendant Deshazo refused. 15 However, Plaintiff has not alleged that he asked Defendant Deshazo more than once to loosen 16 the handcuffs or that Defendant Deshazo otherwise knew that the handcuffs were too tight and were 17 causing Plaintiff to suffer severe pain. See Guerrero v. Rivera, No. EDCV 13-0092-JGB (JPR), 2013 18 WL 878285, at *2 (C.D. Cal. Mar. 8, 2013) (finding that plaintiff had failed to state a cognizable 19 excessive force claim regarding overly tight handcuffs were the named defendants had nothing to do 20 with the handcuffing, that plaintiff did not allege that he made more than one request to any defendant 21 to loosen the cuffs, or that any defendant was present for more than a few moments and was able to 22 observe the effect the handcuffs had on the plaintiff); Gregory v. Adams, No. CIV S-05-1393 FCD 23 EFB P, 2008 WL 486013, at *5 (E.D. Cal. Feb. 19, 2008) (holding that triable issue existed as to 24 whether officer who did not personally handcuff plaintiff nonetheless used excessive force in ignoring 25 plaintiff’s repeated assertions of pain and refusing to loosen cuffs for more than five hours). 26 Therefore, Plaintiff has not alleged a cognizable claim for excessive force based on refusing to loosen 27 overly tight handcuffs against Defendant Deshazo. 28 /// 1 4. Failure to Intervene in Excessive Force 2 A prison official may be liable under § 1983 if he is aware that a fellow official is violating a 3 prisoner’s constitutional rights, but fails to intervene. See Cunningham v. Gates, 229 F.3d 1271, 1289 4 (9th Cir. 2000) (“[P]olice officers have a duty to intercede when their fellow officers violate the 5 constitutional rights of a suspect or other citizen.”) (citation omitted); see also Gaudreault v. 6 Municipality of Salem, 923 F.2d 203, 207 n. 3 (1st Cir. 1990) (“An officer who is present at the scene 7 who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can 8 be held liable under section 1983 for his nonfeasance.”). A failure to intervene can support an 9 excessive force claim where the bystander-officers had a realistic opportunity to intervene, but failed 10 to do so. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003); Cunningham, 229 F.3d at 11 1289. 12 Plaintiff asserts that Defendants Espinoza, Luna, and Newton witnessed Defendant Santos’ 13 unprovoked attack on Plaintiff, but failed to intervene. (ECF No. 1, at 8.) Liberally construing 14 Plaintiff’s allegations, Plaintiff states a cognizable claim for failure to intervene against Defendants 15 Espinoza, Luna, and Newton. 16 Plaintiff asserts that Defendants Benavides, Bejinez, Erickson, Espinoza, Hill, Kennedy, Leon, 17 Lopez, Luna, Ramirez, Salas, and Trinidad all had a duty to intervene in Defendant Santos’ assault of 18 Plaintiff. (ECF No. 1, at 8.) However, Plaintiff has failed to allege facts demonstrating that each of 19 those Defendants was present when Defendant Santos utilized force on Plaintiff, that each of those 20 Defendants could see that Defendant Santos was using excessive force on Plaintiff, and that each of 21 those Defendants had a realistic opportunity to intervene during Defendant Santos’ assault of Plaintiff. 22 Finally, Plaintiff asserts that, at no time, did any of the surrounding officers intervene to stop 23 the beating of Plaintiff. (ECF No. 1, at 9.) However, this allegation fails to establish a cognizable 24 failure to intervene claim because Plaintiff has failed to link any named Defendant to this allegation. 25 See Leer, 844 F.2d at 634 (liability may be imposed on individual defendant under § 1983 only if 26 plaintiff can show that defendant proximately caused deprivation of federally protected rights). 27 Indeed, Plaintiff alleges that some or all of these Defendants were engaging in acts excessive force at 28 that time, and therefore were not failing to intervene. 1 Therefore, Plaintiff has failed to allege a cognizable claim for failure to intervene in excessive 2 force against Defendants Benavides, Bejinez, Erickson, Hill, Kennedy, Leon, Lopez, Ramirez, Salas, 3 and Trinidad. 4 G. Unreasonable Search 5 The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 6 558 (1979); Byrd v. Maricopa Cnty. Sheriff’s Office, 629 F.3d 1135, 1140 (9th Cir. 2011); 7 Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The reasonableness of the search is 8 determined by the context, which “requires a balancing of the need for the particular search against the 9 invasion of personal rights that the search entails.” Bell, 441 U.S. at 559. Factors that must be 10 evaluated are “the scope of the particular intrusion, the manner in which it is conducted, the 11 justification for initiating it, and the place in which it is conducted.” Id.; Bull v. City and Cnty. of San 12 Francisco, 595 F.3d 964, 972 (9th Cir. 2010) (en banc). 13 1. Defendant Santos 14 Plaintiff alleges that Defendant Santos violated his Fourth Amendment right against 15 unreasonable searches when Defendant Santos ordered Plaintiff to disrobe, blinded him with pepper 16 spray, attacked him with a MEB baton, dragged him out of the shower, beat, kicked, and stomped 17 Plaintiff, applied cuffs on Plaintiff too tightly, stripped Plaintiff naked, and carried Plaintiff across the 18 prison yard naked in the presence of the inmate and staff population. (ECF No. 1, at 23.) 19 However, initially, the Court finds that Defendant Santos’ body search of Plaintiff ended when 20 Defendant Santos opened the shower gate and told Plaintiff to get down and cuff up. (ECF No. 1, at 21 7.) Therefore, Plaintiff has failed to allege a cognizable Fourth Amendment claim against Defendant 22 Santos based on allegations that Defendant Santos blinded him with pepper spray, attacked him with a 23 MEB baton, dragged him out of the shower, beat, kicked, and stomped Plaintiff, applied cuffs on 24 Plaintiff too tightly, stripped Plaintiff naked, and carried Plaintiff across the prison yard naked in the 25 presence of the inmate and staff population because the Fourth Amendment’s protection against 26 unreasonable searches is not applicable to any actions taken by Defendant Santos after the search 27 ended. 28 1 With regards to Plaintiff’s allegation that Defendant Santos violated Plaintiff’s Fourth 2 Amendment right against unreasonable searches when Defendant Santos ordered Plaintiff to disrobe, 3 the Fourth Amendment applies to the invasion of bodily privacy in prisons. Bull, 595 F.3d at 974-75; 4 Michenfelder, 860 F.2d at 333. Defendant’s order for and requiring Plaintiff to disrobe does not state a 5 cognizable claim. Similar strip searches have been held constitutionally permissible by the Ninth 6 Circuit and Supreme Court. See, e.g., Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012); 7 Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc). “Shielding one’s 8 unclothed figure from the view of strangers, particularly strangers of the opposite sex is impelled by 9 elementary self-respect and personal dignity.” Michenfelder, 860 F.2d at 333. However, the Ninth 10 Circuit has held that occasional viewing of unclothed male prisoners by female correctional officers 11 does not violate the Fourth Amendment rights of the inmates. Id. at 334; see also Grummett v. 12 Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985). 13 Here, Plaintiff asserts that Defendant Santos approached the shower that Plaintiff was in and 14 told Plaintiff to give his boxers to Defendant Santos as Defendant Espinoza, a female officer, entered 15 the building, looking toward the shower and the search of Plaintiff. However, Plaintiff’s boxers were 16 not removed until after Defendant Santos’ body search of Plaintiff was over. Therefore, Plaintiff has 17 failed to allege a cognizable Fourth Amendment claim against Defendant Santos based on allegations 18 that Defendant Santos ordered Plaintiff to take his boxers off while a female officer was able to view 19 the body search. 20 2. Defendant Benavides and “Responder officers” 21 Plaintiff alleges that Defendant Benavides and “Responder officers” violated his Fourth 22 Amendment right to unreasonable searches when they excessively pepper sprayed Plaintiff, jumped on 23 his back, hit Plaintiff in the head and face, kicked Plaintiff’s body, legs, and genitalia, applied cuffs 24 too tightly, and when Defendant Salas snatched off Plaintiff’s boxer shorts. (ECF No. 1, at 23.) 25 Additionally, Plaintiff alleges that “Defendants” violated his Fourth Amendment right against 26 unreasonable searches when they failed to intervene when Defendant Salas removed Plaintiff’s boxer 27 shorts, leaving him naked in the presence of female guards and medical staff, and when he was moved 28 through the prison yard while still naked. 1 However, all of these allegations occurred after Defendant Santos’ body search of Plaintiff 2 ended. Plaintiff cannot convert claims for excessive force and failure to intervene into Fourth 3 Amendment violations. Therefore, Plaintiff has failed to allege a cognizable Fourth Amendment 4 claim against Defendant Benavides and “Responder officers.” 5 H. Violation of First Amendment Free Exercise of Religion Clause 6 “The right to exercise religious practices and beliefs does not terminate at the prison door.” 7 McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Shabazz, 482 U.S. 342, and 8 Bell v. Wolfish, 441 U.S. 520, 545 (1979). The right to free exercise of religious faith is, however, 9 ‘necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate 10 correctional goals or to maintain prison security.” McElyea, 833 F.2d at 197. Federal courts 11 “determine whether these competing interests are balanced properly by applying a ‘reasonableness’ 12 test.” Id. Action by prison officials that impacts an inmate’s right to free exercise of religion “is valid 13 if it is reasonably related to legitimate penological interests.” Id. (internal quotation marks omitted). 14 1. Defendant Santos 15 Plaintiff asserts that Defendant Santos violated his First Amendment right to free exercise of 16 religion, specifically his “right to modesty under the Islamic Beliefs” when Defendant Santos used 17 pepper spray and physical force to get Plaintiff naked in the presence of Defendant Espinoza, a female 18 guard. (ECF No. 1, at 21.) However, Plaintiff has failed to allege any facts establishing that 19 Defendant Santos used any kind of force to “get Plaintiff naked.” In fact, Plaintiff alleges that 20 Defendant Salas, not Defendant Santos, was the Defendant who removed Plaintiff’s boxer shorts from 21 his body. Plaintiff has not pled that Defendant Santos directed Defendant Salas to remove Plaintiff’s 22 boxer shorts or was in any way involved in Defendant Salas’ decision to remove Plaintiff’s boxers. 23 Therefore, Plaintiff has not pled a cognizable claim for violation of his First Amendment right to free 24 exercise of religion against Defendant Santos. 25 2. Defendants Salas, Bejinez, Trinidad, and Deshazo 26 Plaintiff alleges that, after he was cuffed at the wrists and ankles, placed in a stokes litter, and 27 placed on a gurney, Defendant Salas “snatched” Plaintiff’s boxer shorts off of his body and placed the 28 pepper spray-soaked underwear over Plaintiff’s face. Nothing was placed over Plaintiff’s genitalia in 1 order to cover them. Thus, at that point, Plaintiff was completely naked in front of Defendants 2 Espinoza, Hansen, Liebold, and Sharp, all women. Defendants Bejinez and Trinidad then wheeled 3 Plaintiff on the gurney across the yard, still completely naked, in the presence of the inmate 4 population, custody staff of both genders, and support services staff. Plaintiff was placed, in the 5 stokes litter, on the ground of the holding tank in the Facility B medical clinic, still naked. Defendant 6 Deshazo, the assigned medical triage coverage officer, did not cover up Plaintiff’s genitalia at any 7 time even though he opened the door to the medical clinic and let Inmate Homick, who was able to see 8 Plaintiff lying naked on the floor, into the clinic. (ECF No. 1, at 9-10.) Plaintiff further alleges that 9 these actions violated his First Amendment right to free exercise of religion, specifically his “right to 10 modesty under the Islamic Beliefs.” (Id. at 21.) 11 The Court finds that, liberally construed, these allegations are sufficient to plead a cognizable 12 claim for violations of Plaintiff’s First Amendment right to free exercise of religion against 13 Defendants Salas, Bejinez, Trinidad, and Deshazo. 14 I. Sexual Assault/Harassment 15 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the Eighth 16 Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (‘In the simplest and 17 most absolute of terms … prisoners [have a clearly established Eighth Amendment right] to be free 18 from sexual abuse ….’); see also Women Prisoners of the Dist. of Columbia Dep’t of Corr. v. District 19 of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994) (‘[U]nsolicited touching of … prisoners’ 20 [genitalia] by prison employees are “simply not part of the penalty that criminal offenders pay for their 21 offenses against society”’ (quoting Farmer v. Brennan, 511 U.S. 825, 834 … (1994))), aff’d in part 22 and vacated in part, 93 F.3d 910 … (D.C. Cir. 1996).” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th 23 Cir. 2012.) “In evaluating a prisoner’s claim, courts consider whether ‘the officials act[ed] with a 24 sufficiently culpable state of mind’ and inf the alleged wrongdoing was objectively ‘harmful enough’ 25 to establish a constitutional violation.” Id. 26 In this case, Plaintiff alleges that Defendant Salas “snatched off [Plaintiff’s] boxer shorts 27 abusing his genitalia and leaving it exposed for two hours,” (ECF No. 1, at 23), that Defendants 28 Bejinez and Trinidad wheeled Plaintiff on the gurney across the yard, still completely naked, in the 1 presence of the inmate population, custody staff of both genders, and support services staff, and that 2 Defendant Deshazo let another inmate into the medical clinic, who was able to see Plaintiff lying 3 naked on the floor. 4 However, while “the Ninth Circuit has recognized that sexual harassment may constitute a 5 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated 6 between sexual harassment that involves verbal abuse and that which involves allegations of physical 7 assault, finding the later to be in violation of the constitution.” Minifield v. Butikofer, 298 F. Supp. 2d 8 900, 904 (N.D. Cal. 2004) (citation omitted). Here, Plaintiff does not clearly allege that Defendants 9 Salas, Bejinez, Trinidad, or Deshazo physically touched him in a sexual manner. Somers v. Thurman, 10 109 F.3d 614, 624 (9th Cir. 1997) (“To hold that gawking, pointing, and joking violates the 11 prohibition against cruel and unusual punishment would trivialize the objective component of the 12 Eighth Amendment test and render it absurd.”). Further, to the extent that Plaintiff’s allegation that 13 Defendant Salas “snatched off” Plaintiff’s boxer shorts, abusing Plaintiff’s genitalia, means that 14 Defendant Salas actually touched Plaintiff’s genitalia, Plaintiff has failed to allege that any touch to his 15 genitalia was more than brief. Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998) (stating a prisoner 16 plaintiff failed to establish a sexual assault claim where two brief touches to an inmate’s buttocks, 17 unaccompanied by any sexual comments or banter, lasted only seconds and the inmate thought that the 18 defendants were trying to embarrass him, not rape him). 19 Therefore, Plaintiff has not pled a cognizable claim for sexual assault or sexual harassment 20 against any named Defendant. 21 J. Conditions of Confinement 22 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 23 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 24 Prison officials therefore have a “duty to ensure that prisoners are provided adequate shelter, food, 25 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 26 2000) (citations omitted). “Although the routine discomfort inherent in the prison setting is 27 inadequate to satisfy the objective prong of an Eighth Amendment inquiry, ‘those deprivations 28 denying “the minimal civilized measure of life’s necessities” are sufficiently grave to form the basis of 1 an Eighth Amendment violation.’” Id.; see also Hudson v. McMillian, 503 U.S. 1, 9 (1992). “The 2 circumstances, nature, and duration of a deprivation of these necessities must be considered in 3 determining whether a constitutional violation has occurred.” Id. 4 “A prisoner claiming an Eighth Amendment violation must show (1) that the deprivation he 5 suffered was ‘objectively, sufficiently serious’; and (2) that prison officials were deliberately 6 indifferent to his [health or] safety in allowing the deprivation to take place.” Morgan, 465 F.3d at 7 1045. Thus, a prison official may be held liable under the Eighth Amendment for denying humane 8 conditions of confinement only if the official knows that the plaintiff faced a substantial risk of harm 9 and disregarded that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 10 U.S. 825, 837-45 (1994). Delays in providing showers and medical attention for inmates suffering 11 from harmful effects of pepper spray may violate the Eighth Amendment. Clement v. Gomez, 298 12 F.3d 898, 905-06 (9th Cir. 2002). 13 Plaintiff alleges that he was thoroughly sprayed with pepper spray during an incident with 14 various named Defendants. When Plaintiff arrived at the Facility B medical clinic, Defendant 15 Deshazo refused to summon medical staff to provide treatment, as Plaintiff was screaming in pain, 16 hyperventilating, coughing, and sweating. Instead, Defendant Deshazo placed a spit mask hood over 17 Plaintiff’s head even though Plaintiff was showing apparent signs of respiratory distress. While 18 Plaintiff wore the spit mask hood, Plaintiff was choking, gagging for air, hyperventilating, sweating, 19 mucous was sticking to the spit hood, which clogged up the mask and caused Plaintiff to partially 20 suffocate and fight for air, and he was in and out of consciousness. Defendant Deshazo disregarded 21 Plaintiff’s pleas for help, even though the Defendant was within ten feet of Plaintiff, and Plaintiff wore 22 the spit mask hood for at least an hour. 23 After Defendants Bejinez and Trinidad had a conversation with Defendant Benavides, 24 Defendants Bejinez and Trinidad wheeled Plaintiff across the yard to the gym for decontamination. 25 Defendants Bejinez and Trinidad removed the spit mask hood. After one of the officers stated that the 26 showers were not working, Defendants Bejinez and Trinidad left Plaintiff lying in the stokes litter on 27 the gurney, and sat down and had a personal conversation. Defendant Benavides entered the gym, told 28 Defendants Bejinez and Trinidad to remove the cuffs, take Plaintiff out of the stokes litter, and place 1 him on the bench. After placing Plaintiff on the bench, Defendants Bejinez and Trinidad just sat and 2 resumed their conversation. Another prison official entered the gym and twice poured water from a 3 bucket over Plaintiff’s head, but refused to pour a third bucket of water over Plaintiff after Plaintiff 4 requested the official do so. After that, Defendant Benavides told Defendants Bejinez and Trinidad to 5 take Plaintiff to administrative segregation and Defendants Bejinez and Trinidad did so. Plaintiff 6 alleges that he continued to feel burning from the pepper spray in his eyes and on his body for a few 7 days until he was able to take a shower. 8 The Court finds that, liberally construed, these allegations are sufficient to state a cognizable 9 claim for unconstitutional conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, 10 and Benavides. 11 K. Deliberate Indifference to Serious Medical Needs 12 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 13 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 14 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled 15 in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Jett v. Penner, 16 439 F.3d 1091, 1096 (9th Cir. 2006). The two-part test for deliberate indifference requires Plaintiff to 17 show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could 18 result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the 19 defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (citation 20 omitted). 21 A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 22 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 23 (1994). The requisite state of mind is one of subjective recklessness, which entails more than ordinary 24 lack of due care. Snow, 681 F.3d at 985. Deliberate indifference may be shown by the denial, delay, 25 or intentional interference with medical treatment or by the way in which medical care is provided. 26 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “Deliberate indifference is a high 27 legal standard,” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. 28 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure 1 to respond to a prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 2 F.3d at 1096. In applying this standard, the Ninth Circuit has held that before it can be said that a 3 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be substantial. 4 Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 5 Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06).) 6 Plaintiff alleges in his complaint that he was thoroughly pepper sprayed, kicked, punched, and 7 stomped during an incident with various Defendants. After the incident was over and Plaintiff was 8 cuffed, Defendants Hoggard, Hansen, Liebold, and Sharp brought a gurney. Plaintiff was placed on 9 the gurney and taken to the Facility B medical clinic. At the medical clinic, Defendant Deshazo was 10 within ten feet of Plaintiff and disregarded Plaintiff’s pleas for help even though he witnessed Plaintiff 11 screaming in pain, hyperventilating, coughing, sweating, choking, fighting for air through a spit hood 12 mask, and drifting in and out of consciousness. After Defendants Bejinez and Trinidad took Plaintiff 13 to the gym for pepper spray decontamination, one of the two Defendants stated that the showers were 14 not working and then ignored Plaintiff. After Defendants Bejinez and Trinidad took Plaintiff out of 15 the stokes litter and gurney, Defendants Bejinez, Trinidad, Hoggard, and Benavides witnessed Plaintiff 16 not being able to hold up himself up and that Plaintiff could not support himself with his injured arm, 17 wrist, knees, or leg. Defendants Bejinez, Trinidad, and Benavides had to assist Plaintiff in put on a 18 pair of boxer shorts. Also, Defendants Bejinez and Trinidad had to carry Plaintiff into the 19 administrative segregation unit. Then, four hours after Plaintiff was taken to administrative 20 segregation, Plaintiff was found unresponsive in his cell by an administrative segregation unit officer. 21 The Court finds that, liberally construed, Plaintiff’s allegations state a cognizable claim for 22 deliberate indifference to serious medical needs against Defendants Benavides, Bejinez, Deshazo, 23 Hoggard, and Trinidad. 24 However, Plaintiff has not pled a cognizable claim for deliberate indifference to serious 25 medical needs against Defendants George, Hansen, Liebold, and/or Sharp because Plaintiff has not 26 alleged facts demonstrating that each of those Defendants knew of and disregarded Plaintiff’s physical 27 distress and requests for medical attention. 28 /// 1 L. Conspiracy 2 To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must allege 3 (1) the existence of an express or implied agreement among the defendants to deprive the plaintiff of 4 his constitutional rights, and (2) an actual deprivation of those rights resulting from that agreement. 5 Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To establish a conspiracy, Plaintiff allege specific 6 facts showing “an agreement or meeting of the minds to violate constitutional rights. To be liable, 7 each participant in the conspiracy need not know the exact details of the plan, but each participant 8 must at least share the common objective of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th 9 Cir. 2002) (internal citations and quotation marks omitted). The mere conclusory statement that 10 defendants “conspired” together is not sufficient to state a cognizable claim. Woodrum v. Woodward 11 Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989). 12 Here, Plaintiff alleges that Defendants Benavides and Hoggard had an “orchestrated plan of 13 action” to minimize Plaintiff’s documented injuries in order to isolate Plaintiff in administrative 14 segregation in order to try and prevent Plaintiff from receiving medical care which would have opened 15 up a serious investigation into excessive force and completion of an excessive force video deposition. 16 However, Plaintiff has failed to allege any specific facts establishing that Defendants Benavides and 17 Hoggard expressly or impliedly agreed together to deprive Plaintiff of his constitutional right to 18 medical care. Therefore, Plaintiff has not pled a cognizable conspiracy claim against Defendants 19 Benavides and Hoggard. 20 M. Deprivation of Property 21 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 22 730 (9th Cir. 1974). An authorized, intentional deprivation of property is actionable under the Due 23 Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman 24 Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). 25 However, “an unauthorized intentional deprivation of property by a state employee does not constitute 26 a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if 27 a meaningful postdeprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. 28 Here, Plaintiff alleges that Defendant Santos brought Plaintiff’s property to the administrative 1 segregation unit in order to bring Plaintiff’s property within the administrative segregation property 2 limit, but it was apparent to Plaintiff that property was already missing when his property was brought 3 to him. Additionally, Plaintiff states that Defendant Santos told him to throw the property away and 4 send the property home, and began discarding Plaintiff’s property. Since Defendant Santos’ conduct 5 is an unauthorized deprivation of property, due process is satisfied if there is a meaningful post- 6 deprivation remedy available to him. Id. Plaintiff has an adequate post-deprivation remedy available 7 under California law. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code 8 §§ 810-895). Therefore, Plaintiff fails to allege a cognizable due process claim based on the 9 deprivation of his property against Defendant Santos. 10 N. False Reports 11 Prisoners do not have a liberty interest in being free from false accusations of misconduct. 12 This means that the falsification of a report, even when intentional, does not alone give rise to a claim 13 under § 1983. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The prison inmate has no 14 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may 15 result in the deprivation of a protected liberty interest.”); Buckley v. Gomez, 36 F. Supp. 2d 1216, 16 1222 (S.D. Cal. 1997) (stating that “a prisoner does not have a constitutional right to be free from 17 wrongfully issued disciplinary reports[]”). However, there are two ways that allegations that an 18 inmate has been subjected to a false disciplinary report can state a cognizable civil rights claim: (1) 19 when the prisoner alleges that the false disciplinary report was filed in retaliation for his exercise of a 20 constitutional right; and (2) when the prisoner alleges that they were not afforded procedural due 21 process in a proceeding concerning a false report. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 22 1997) (discussing retaliation claim against a correctional officer based upon the correctional officer’s 23 false accusations of violating a prison rule); Freeman, 808 F.2d at 951 (holding that the filing of a false 24 disciplinary charge against a prisoner is not actionable under § 1983 if prison officials provide the 25 prisoner with procedural due process protections); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th 26 Cir. 1984) (same). 27 Here, Plaintiff alleges that Defendant Santos authored a false Rules Violation Report for 28 battery on a peace officer resulting in the use of force and that Defendants Bejinez, Erickson, 1 Espinoza, Hill, Kennedy, Leon, Lopez, Luna, Newton, Ramirez, Salas, Santos, Hansen, Hoggard, 2 Liebold, and Sharp authored false reports as part of a CDCR 837 Crime/Incident report. However, 3 Plaintiff has not alleged any facts demonstrating that the false reports were filed in retaliation for his 4 exercise of a constitutional right. Further, Plaintiff has failed to allege facts sufficient to establish that 5 he was not provided the procedural due process protections set forth in Wolff during the resulting 6 disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 564–71 (1974) (“Such protections 7 include the rights to call witnesses, to present documentary evidence and to have a written statement 8 by the fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.”) 9 Therefore, Plaintiff has failed to state a cognizable claim for violation of his due process or any other 10 constitutional rights based on any false reports against Defendant Santos, Bejinez, Erickson, Espinoza, 11 Hill, Kennedy, Leon, Lopez, Luna, Newton, Ramirez, Salas, Hansen, Hoggard, Liebold, and Sharp. 12 O. Retaliation 13 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition 14 the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 15 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 16 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison 17 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that 18 a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 19 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) 20 the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 21 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 22 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 23 Adverse action taken against a prisoner “need not be an independent constitutional violation. 24 The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal citations 25 omitted). A causal connection between the adverse action and the protected conduct can be alleged by 26 an allegation of a chronology of events from which retaliation can be inferred. Id. The filing of 27 grievances and the pursuit of civil rights litigation against prison officials are both protected activities. 28 Rhodes, 408 F.3d at 567–68. A plaintiff must allege either a chilling effect on future First 1 Amendment activities, or that he suffered some other harm that is “more than minimal.” Watison, 668 2 F.3d at 1114. A plaintiff successfully pleads that the action did not reasonably advance a legitimate 3 correctional goal by alleging, in addition to a retaliatory motive, that the defendant’s actions were 4 “arbitrary and capricious” or that they were “unnecessary to the maintenance of order in the 5 institution.” Id. 6 Initially, Plaintiff alleges that custody staff at PVSP have a longstanding practice of using 7 unclothed body searches to initiate assaults against “targeted inmates” as a means of retaliation 8 resulting in false Rules Violation Reports, various prison disciplinary sanctions, and referral to the 9 District Attorney for prosecution. Plaintiff states that he fit the criteria of a “targeted inmate” because, 10 at the time of the events alleged in this complaint, he was actively pursuing a state-law conversion 11 action against two PVSP correctional officers in the Fresno County Superior Court. However, these 12 allegations fail to establish a cognizable retaliation claim because Plaintiff has failed to allege that any 13 named Defendant knew of these actions, took one or more of the adverse actions that they are alleged 14 to have taken against Plaintiff because Plaintiff was pursuing a state court lawsuit against two PVSP 15 correctional officers, that the Defendant’s action chilled Plaintiff’s exercise of his First Amendment 16 rights, and that the Defendant’s adverse action did not reasonably advance a legitimate correctional 17 goal. See Rhodes, 408 F.3d at 567-68. Plaintiff’s conclusory allegations lumping Defendants together 18 are insufficient. Therefore, Plaintiff has not pled a cognizable claim for retaliation in violation of the 19 First Amendment. 20 P. Denial of Access to the Courts 21 Prisoners have a “fundamental constitutional right of access to the courts.” Bounds v. Smith, 22 430 U.S. 817, 828 (1977). The right of access is grounded in the First and Fourteenth Amendments. 23 Silva v. Di Vittorio, 658 F.3d 1090, 1101–02 (“Under the First Amendment, a prisoner has both a right 24 to meaningful access to the courts and a broader right to petition the government for a redress of his 25 grievances.”), overruled on other grounds as stated in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th 26 Cir. 2015; Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995) (“The right of access is grounded in 27 the Due Process and Equal Protection Clauses.”). The right of access to the courts is limited and 28 applies only to direct criminal appeals, habeas petitions, and civil rights actions pursuant to 42 U.S.C. 1 § 1983. Lewis v. Casey, 518 U.S. 343, 354-55 (1996). 2 Here, Plaintiff alleges that Defendant Benavides deprived or denied Plaintiff two court-ordered 3 telephonic court conference calls on December 23, 2013 and January 6, 2014 for Fresno County 4 Superior Court Case Number 13CECG02602. (ECF No. 1, at 16.) However, Plaintiff alleges that 5 Case Number 13CECG02602 is a state-law conversion action. (ECF No. 1, at 6.) Therefore, since 6 Plaintiff’s state court action is not a direct criminal appeal, a habeas petition, or civil rights action, the 7 constitutional right to access the court does not apply to Plaintiff’s state court action. Lewis, 518 U.S. 8 at 354-55. Consequently, Plaintiff has failed to state a cognizable claim for a violation of his 9 constitutional right of access to the courts against Defendant Benavides. 10 Q. State Regulations 11 Plaintiff alleges violations of various prison regulations by various defendants. However, § 12 1983 only provides a cause of action for the deprivation of federally protected rights. “To the extent 13 that the violation of a state law amounts to the deprivation of a state-created interest that reaches 14 beyond that guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada 15 County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 16 F.3d 367, 370 (9th Cir. 1996)); see Davis v. Kissinger, No. CIV S–04–0878-GEB-DAD-P, 2009 WL 17 256574, at *12 n. 4 (E.D. Cal. Feb. 3, 2009). Nor is there any liability under § 1983 for violating 18 prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 19 109 F.3d 427, 430 (8th Cir. 1997)). Thus, the violation of any state law or regulation that reaches 20 beyond the rights protected by the federal Constitution and/or the violation of any prison regulation, 21 rule or policy does not amount to a cognizable claim under federal law, nor does it amount to any 22 independent cause of action under § 1983. 23 R. Declaratory Relief 24 Plaintiff's complaint seeks a declaratory judgment. “A declaratory judgment, like other forms 25 of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public 26 interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief 27 should be denied when it will neither serve a useful purpose in clarifying and settling the legal 28 relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy 1 faced by the parties.” United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). 2 If this action reaches trial and the jury returns a verdict in favor of Plaintiff, then that verdict 3 will be a finding that Plaintiff's constitutional rights were violated. Accordingly, a declaration that any 4 named Defendant violated Plaintiff's rights is unnecessary. 5 IV. Conclusions and Order 6 Since Plaintiff is entitled to amend his complaint once as a matter of right pursuant to Rule 7 15(a)(1)(A), Plaintiff’s motion to add a party is meritorious. 8 Based on the foregoing, the Court finds that Plaintiff has stated cognizable claims as follows: 9 (1) for excessive force against Defendants Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, 10 Kennedy, Benjinez, and Trinidad, (2) for violation of Plaintiff’s First Amendment right to free 11 exercise of religion against Defendants Salas, Bejinez, Trinidad, and Deshazo, (3) for unconstitutional 12 conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, and Benavides, (4) for 13 deliberate indifference to serious medical needs against Defendants Benavides, Bejinez, Deshazo, 14 Hoggard, and Trinidad, and (5) for failure to intervene against Espinoza, Luna, and Newton. 15 However, Plaintiff does not state any other cognizable claims against any other Defendant. Plaintiff 16 will be granted leave to amend his complaint to cure the identified deficiencies, to the extent that he is 17 able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 18 Plaintiff is given the choice to file a first amended complaint, or to proceed on the claims found 19 cognizable as identified by the Court, which will result in voluntarily dismissal of all other claims and 20 defendants per Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. Plaintiff must either notify 21 the Court of his decision to proceed on the cognizable claims or file a first amended complaint within 22 thirty (30) days of the service of this order. If Plaintiff needs an extension of time to comply with this 23 order, Plaintiff shall file a motion seeking an extension of time no later than thirty (30) days from the 24 date of service of this order. 25 If Plaintiff wishes to file a first amended complaint, any such first amended complaint should 26 be brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant did that led to the 27 deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-79. Although accepted as true, 28 1 the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” 2 Twombly, 550 U.S. at 555 (citations omitted). 3 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims 4 in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 5 complaints). 6 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 7 Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 8 complaint must be “complete in itself without reference to the prior or superseded pleading.” Local 9 Rule 220. 10 Based on the foregoing, it is HEREBY ORDERED that: 11 1. Plaintiff’s motion to amend to add defendant R. Newton is GRANTED; 12 2. The Clerk’s office shall send Plaintiff a complaint form; 13 3. Within thirty (30) days from the date of service of this order, Plaintiff must either: 14 a. File a first amended complaint curing the deficiencies identified by the Court in 15 this order; or 16 b. Notify the Court in writing that he does not wish to file a first amended 17 complaint and that he is willing to proceed only on the cognizable claims: (1) 18 for excessive force against Defendants Santos, Leon, Benavides, Hill, Salas, 19 Luna, Lopez, Kennedy, Benjinez, and Trinidad, (2) for violation of Plaintiff’s 20 First Amendment right to free exercise of religion against Defendants Salas, 21 Bejinez, Trinidad, and Deshazo, (3) for unconstitutional conditions of 22 confinement against Defendants Deshazo, Bejinez, Trinidad, and Benavides, (4) 23 for deliberate indifference to serious medical needs against Defendants 24 Benavides, Bejinez, Deshazo, Hoggard, and Trinidad, and (5) for failure to 25 intervene against Espinoza, Luna, and Newton, as identified by the Court as 26 viable/cognizable in this order, which will result in his voluntary dismissal of all 27 other defendants and all other claims, per Rule 41(a)(1)(i) of the Federal Rules 28 of Civil Procedure; and 1 4. If Plaintiff fails to comply with this order, he will be allowed to proceed only on the 2 claims found cognizable herein and it will be recommended that all other claims and 3 defendants be dismissed with prejudice. 4 5 IT IS SO ORDERED. 6 Dated: October 17, 2019 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28