(PC) Enrique Lemus Jr v. V. Sanchez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ENRIQUE LEMUS, JR. ) Case No.: 1:21-cv-00442-NONE-SAB (PC) ) 12 Plaintiff, ) ) SCREENING ORDER GRANTING PLAINTIFF 13 v. ) LEAVE TO FILE AN AMENDED COMPLAINT 14 V. SANCHEZ, et al., ) (ECF No. 1) ) 15 Defendants. ) ) 16 ) 17 Plaintiff Enrique Lemus, Jr. is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Plaintiff filed the instant complaint on January 20, 2021, in the United States District Court for 20 the Central District of California. 21 On March 15, 2021, the action was transferred to this Court, and Plaintiff’s complaint is before 22 the Court for screening. 23 I. 24 SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 27 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 28 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 1 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 2 U.S.C. § 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader is 4 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 6 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 8 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 10 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 11 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 12 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 13 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 14 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 15 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 17 II. 18 SUMMARY OF ALLEGATIONS 19 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of the 20 screening requirement under 28 U.S.C. § 1915. 21 On October 1, 2019, Plaintiff arrived at Sierra Conservation Center and walked to Yard A by 22 Defendants V. Sanchez, Zamboni, Martinez, French, Lacey, Loyed, Filipak, and R. Vallejo, allowed 23 Plaintiff’s life to be put in danger and a blast grenade was used constituting excessive force. 24 On October 9, 2019, excessive force was used against Plaintiff when Defendant V. Sanchez 25 deployed an blast grenade that went off on his left ear while he was in a prone position. A statement 26 by V. Sanchez indicates that he did not hit his intended target. 27 /// 28 /// 1 Plaintiff’s life was put in danger because he is a general population inmate, yet he was placed 2 on Yard A which is a 50/50 yard. Plaintiff tried to go through the proper channels but was placed in 3 the general population which put him in a bad situation. 4 III. 5 DISCUSSION 6 A. Deliberate Indifference to Personal Safety 7 “The Eighth Amendment imposes a duty on prison officials to protect inmates from violence at 8 the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). The right to personal 9 security is an “historic liberty interest” that is protected substantively by the Due Process Clause. 10 Youngberg v. Romeo, 457 U.S. 307, 315 (1982). This right is not extinguished by lawful confinement, 11 even for penal purposes. See generally Hutto v. Finney, 437 U.S. 678 (1978). Insufficient protection of 12 a prisoner resulting in harm inflicted by other inmates may also violate a prisoner's due process rights. 13 Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988) (citing Youngberg, 457 U.S. at 315-16). 14 A prisoner may state a Section 1983 claim under the Eighth Amendment against prison 15 officials where the officials acted with deliberate indifference to the threat of serious harm or injury to 16 him. Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013); see Berg v. 17 Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (stating same with respect to harm inflicted by another 18 inmate). “Deliberate indifference” has both subjective and objective components. Labatad, 714 F.3d at 19 1160. First, a prison official must be aware of facts from which the inference could be drawn that a 20 substantial risk of serious harm exists. Then, the official must also draw the inference. See id. at 1160 21 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994) (internal quotations omitted)). Liability may 22 follow only if a prison official knows that inmates face a substantial risk of serious harm and the 23 official disregards that risk by failing to take reasonable measures to abate it. Labatad, 714 F.3d at 24 1160. 25 Although Plaintiff contends that he is a general population inmate and should not have been 26 placed on Yard A at Sierra Conservation Center, he fails to provide what measures should have been 27 taken to protect Plaintiff or that any of the named Defendants knew that Plaintiff would be harmed if 28 placed on Yard A. Plaintiff fails to allege that any Defendant knew of a specific risk to Plaintiff's 1 safety. Plaintiff simply contends that was previously housed in general population and each Defendant 2 allowed his life to be put in danger by placing in Yard A. However, these allegations do not give rise 3 to a claim for failure to protect. Prison settings are “always potentially dangerous,” and “mere 4 suspicion that an attack will occur” is insufficient to show that prison officials were deliberately 5 indifferent to serious threats to the inmate's safety. Berg, 794 F.2d at 459–61. 6 Plaintiff does not allege that any of the named Defendants had any specific knowledge that 7 inmates on Yard A posed a threat of harm to Plaintiff. Rather, he merely alleges that Defendants 8 “should” have known of an alleged danger. However, there is no allegation that any named Defendant 9 had specific knowledge of potential harm to Plaintiff’s safety and disregarded such harm. Because 10 Plaintiff has failed to allege deliberate indifference by the named Defendants, he has failed to state an 11 Eighth Amendment claim for failure to protect. See Farmer, 511 U.S. at 834. 12 B. Excessive Force 13 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 14 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The 15 unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the 16 Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) (citations omitted). Although prison 17 conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, 18 shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) 19 (quotations omitted). 20 For claims of excessive physical force, the issue is “whether force was applied in a good-faith 21 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 22 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] the need for 23 application of force, the relationship between that need and the amount of force used, the threat 24 ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a 25 forceful response.’” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)). The objective 26 component of an Eighth Amendment claim is contextual and responsive to contemporary standards of 27 decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses 28 of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 1 violates contemporary standards of decency, regardless of whether or not significant injury is evident, 2 Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. 3 Keller, 289 F.3d 623, 628 (9th Cir. 2002). 4 Plaintiff alleges Defendant V. Sanchez used excessive force by deploying a blast grenade 5 which was not proper procedure and placed his life in danger. However, Plaintiff has failed to provide 6 sufficient factual details relating to whether the force was applied in a good-faith effort to maintain or 7 restore discipline or not. Other than stating there was a mutual combat, Plaintiff has not alleged what 8 occurred prior to Defendant Sanchez’s actions or any facts to determine why Defendant Sanchez shot 9 Plaintiff. Furthermore, Plaintiff submits that Defendant Sanchez did not hit his intended target. This 10 fact suggests that Defendant Sanchez did not shoot Plaintiff to maliciously and sadistically cause 11 harm. 12 To the extent Plaintiff alleges that violating prison regulations concerning use of force violates 13 Plaintiff’s Eighth Amendment rights, Plaintiff “is advised that a violation of a prison regulation or 14 policy is not a per se constitutional violation.” Brown v. Galvin, No. 2:16-CV-2629-JAM-DB (PC), 15 2017 WL 6611501, at *3 (E.D. Cal. Dec. 27, 2017); accord Hilson v. Arnett, 1:15-cv-01240-MJS 16 (PC), 2017 WL 6209390, at *9 (E.D. Cal. Dec. 8, 2017) (same); Case v. Kitsap Cty. Sheriff’s Dep’t, 17 249 F.3d 921, 930 (9th Cir. 2001) (“There is no § 1983 liability for violating prison policy.” (quoting 18 Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997)). Accordingly, based on the facts presented in 19 the complaint, the Court finds that Plaintiff has failed to state a cognizable excessive force claim. 20 C. Retaliation 21 “Prisoners have a First Amendment right to file grievances against prison officials and to be 22 free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing 23 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of 24 First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 25 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 26 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 27 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 28 Cir. 2005). To state a cognizable retaliation claim, Plaintiff must establish a nexus between the 1 retaliatory act and the protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2 2014). 3 Here, Plaintiff merely contends that the actions of Defendants constituted retaliation and cruel 4 and unusual punishment. However, Plaintiff has alleged no facts to demonstrate that any Defendant 5 retaliated against him for exercising a constitutional right. Accordingly, Plaintiff fails to state a 6 cognizable retaliation claim. 7 D. State Law Claims 8 Plaintiff seeks to bring claims for negligence and assault and battery under state law. 9 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 10 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the action 11 within such original jurisdiction that they form part of the same case or controversy under Article III,” 12 except as provided in subsections (b) and (c). The Supreme Court has cautioned that “if the federal 13 claims are dismissed before trial, … the state claims should be dismissed as well.” United Mine 14 Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). 15 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 16 must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. As Plaintiff has 17 failed to state any cognizable federal claims in this action, the Court declines to exercise supplemental 18 jurisdiction over Plaintiff’s state law causes of action and will not review the state law claims. See 28 19 U.S.C. § 1367(c)(3). 20 IV. 21 CONCLUSION AND ORDER 22 For the reasons discussed, Plaintiff fails to state a cognizable claim for relief and shall be granted 23 leave to file an amended complaint to cure the deficiencies identified in this order, if he believes he can 24 do so in good faith. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 25 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each 26 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 27 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 28 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Further, Plaintiff may 1 || not change the nature of this suit by adding new, unrelated claims in his amended complaint. Georg 2 507 F.3d at 607 (no “buckshot” complaints). 3 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lace 4 || v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff's amended complaint mu 5 || be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 6 Based on the foregoing, it is HEREBY ORDERED that: 7 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 8 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file < 9 amended complaint; 10 3. Plaintiff's amended complaint shall not exceed twenty-five (25) pages in length; and 11 4. If Plaintiff fails to file an amended complaint in compliance with this order, the Cou 12 will recommend to a district judge that this action be dismissed consistent with tl 13 reasons stated in this order. 14 15 IS SO ORDERED. A (re 16 ll Dated: _May 27, 2021 OF 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28