(PC) Bustillos v. Hernandez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT JOHN BUSTILLOS, No. 1:23-cv-01365-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 HERNANDEZ, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THE 15 Defendants. ACTION 16 (ECF No. 11) 17 18 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 19 U.S.C. § 1983. 20 Plaintiff’s complaint in this action was filed on September 18, 2023. (ECF No. 1.) 21 On October 30, 2023, the Court screened the complaint, found that Plaintiff failed to state a 22 cognizable claim for relief, and granted Plaintiff thirty days to file an amended complaint. (ECF 23 No. 8.) 24 Plaintiff failed to file an amended complaint or otherwise respond to the October 30, 2023 25 order. Therefore, on December 11, 2023, the Court issued an order for Plaintiff to show cause 26 why the action should not be dismissed. (ECF No. 11.) Plaintiff has failed to respond to the 27 order to show cause and the time to do so has now passed. Accordingly, dismissal of the action is 28 warranted. 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 7 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the pleader 10 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 11 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 13 v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant 14 personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 15 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 24 at 969. 25 II. 26 SUMMARY OF ALLEGATIONS 27 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of the 28 screening requirement under 28 U.S.C. § 1915. 1 Plaintiff names officer Cabrillo, officer Hernandez, sergeant Castillo and sergeant 2 Sanchez, as Defendants. 3 Plaintiff alleges as follows: 4 Handcuffed behind back by a C.O. Cabrillo and C.O. Hernandez and brutally beaten with 5 batons and closed firsts and told “who’s the Bitch now!” I sustained serious injuries, ie. Broken nose and double black eyes with photos enclosed as proof. This all happened at 6 North Kern State Prison in 2020. These officers sustained no injuries. 7 (ECF No. 1, Compl. at 3.) 8 Plaintiff seeks compensatory damages, release date back to 2024, and that all Defendants 9 be terminated from CDCR. 10 III. 11 DISCUSSION 12 A. Excessive Force 13 When prison officials use excessive force against prisoners, they violate the inmates’ Eighth 14 Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298 F.3d 898, 15 903 (9th Cir. 2002). To establish a claim for the use of excessive force in violation of the Eighth 16 Amendment, a plaintiff must establish that prison officials applied force maliciously and sadistically 17 to cause harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. 18 McMillian, 503 U.S. 1, 6–7 (1992). In making this determination, the court may evaluate (1) the 19 need for application of force, (2) the relationship between that need and the amount of force used, 20 (3) the threat reasonably perceived by the responsible officials, and (4) any efforts made to temper 21 the severity of a forceful response. Id. at 7; see also id. at 9–10 (“The Eighth Amendment’s 22 prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de 23 minimis uses of physical force, provided that the use of force is not of a sort repugnant to the 24 conscience of mankind.” (internal quotation marks and citations omitted)). 25 Here, Plaintiff simply alleges that he was “brutally beaten with batons and closed fists” 26 resulting in physical injury. However, the complaint is devoid of any allegations detailing the 27 circumstances surrounding the use of force. Context is important in excessive force cases 28 because, without such allegations, the Court cannot determine whether Defendants’ use of force 1 was applied “in a good faith effort to maintain or restore discipline or maliciously and sadistically 2 for the very purpose of causing harm.” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020) 3 (quoting Hudson, 503 U.S. at 6). Thus, the lack of factual allegations regarding the 4 circumstances surrounding the use of force against Plaintiff prevents a finding that Plaintiff has 5 plausibly alleged the force used on him was administered maliciously and sadistically rather than 6 in a good faith effort to maintain or restore discipline. Whitley v. Albers, 475 U.S. 312, 320-21 7 (1986); LeMaire v. Maas, 12 F.3d 1444, 1458 (9th Cir. 1993) (“[P]rison officials are authorized 8 and indeed required to take appropriate measures to maintain prison order and discipline and 9 protect staff and other prisoners from violent behavior [of disruptive inmates].”). In order to cure 10 this pleading defect, Plaintiff must set forth facts which, if true, plausibly allege the force used 11 against him was used maliciously and sadistically to cause him harm rather than in a good faith 12 effort to restore discipline and quell a disturbance. Accordingly, Plaintiff fails to state a 13 cognizable excessive force claim. 14 B. Supervisory Liability 15 Liability may not be imposed on supervisory personnel for the actions or omissions of their 16 subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. 17 Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 18 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 19 Supervisors may be held liable only if they “participated in or directed the violations, or 20 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 21 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 22 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an official 23 sets in motion a ‘series of acts by others which the actor knows or reasonably should know would 24 cause others to inflict’ constitutional harms.” Corales, 567 F.3d at 570. 25 Supervisory liability may also exist without any personal participation if the official 26 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional rights 27 and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 28 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other grounds 1 by Farmer v. Brennan, 511 U.S. 825 (1970). To prove liability for an action or policy, the plaintiff 2 “must ... demonstrate that his deprivation resulted from an official policy or custom established by 3 a ... policymaker possessed with final authority to establish that policy.” Waggy v. Spokane Cty. 4 Wash., 594 F.3d 707, 713 (9th Cir. 2010). When a defendant holds a supervisory position, the 5 causal link between such defendant and the claimed constitutional violation must be specifically 6 alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 7 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of 8 supervisory personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 9 F.2d 266, 268 (9th Cir. 1982). 10 Here, Plaintiff names sergeants Castillo and Sanchez in the caption of the complaint, but he 11 fails to set for any allegations that connect these Defendants personally to the violations alleged 12 in the complaint. Accordingly, Plaintiff fails to state a cognizable claim against sergeants Castillo 13 and Sanchez. 14 C. Computation of Release Date 15 As relief, Plaintiff seeks that his release date be recalculated back to 2024. 16 Generally, a plaintiff may not utilize § 1983 to challenge the legality or duration of his or 17 her custody, or raise a constitutional challenge which could entitle him or her to an earlier release; 18 he or she must seek such relief through a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 19 74, 78 (2005); Preiser v. Rodriguez, 411 U.S. 475, 477 (1973); Young v. Kenny, 907 F.2d 874, 20 876 (9th Cir. 1990). Further, relief under § 1983 for an allegedly unconstitutional conviction or 21 imprisonment does not accrue until the conviction or sentence has been invalidated. Heck v. 22 Humphrey, 512 U.S. 477, 489-90 (1994). A plaintiff may utilize § 1983, and avoid the Heck bar 23 if he or she can allege facts that show success in the action would not necessarily spell immediate 24 or speedier release. Wilkinson, 544 U.S. at 81 (“[H]abeas remedies do not displace § 1983 actions 25 where success in the civil rights suit would not necessarily vitiate the legality of (not previously 26 invalidated) state confinement.”). 27 Here, it appears that Plaintiff is seeking the restoration of good time credits which would 28 entitle him to an earlier release date. Thus, his pursuit of the return of his credits may not be 1 pursued through a § 1983 action until the underlying disciplinary conviction has been invalidated 2 through a habeas action. Plaintiff has not pled any facts indicating his underlying disciplinary 3 convictions have been invalidated pursuant to a successful habeas action. Accordingly, Plaintiff is 4 not entitled to restoration of his credits under the favorable-termination doctrine set out in Heck 5 and its progeny. See 28 U.S.C. § 2254; Wilkinson, 544 U.S. at 81-82. 6 D. Termination of Employment 7 Plaintiff also requests that Defendants’ employment by the CDCR be terminated. Any 8 award of equitable relief is governed by the Prison Litigation Reform Act, which provides in 9 relevant part: The court shall not grant or approve any prospective relief unless the court finds that such 10 relief is narrowly drawn, extends no further than necessary to correct the violation of the 11 Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public 12 safety or the operation of a criminal justice system caused by the relief. 13 18 U.S.C. § 3626(a)(1)(A). 14 Terminating Defendants’ employment would not remedy the past violation of Plaintiff's 15 constitutional rights, and therefore is not narrowly drawn to correct the alleged past violations. 16 Based on the nature of the claims at issue in this action, which involve past conduct, Plaintiff is 17 not entitled to injunctive relief and is therefore limited to seeking money damages for the 18 violations of his federal rights. 19 IV. 20 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 21 Here, the Court screened Plaintiff’s complaint, and on October 30, 2023, an order issued 22 providing Plaintiff with the legal standards that applied to his claims, advising him of the 23 deficiencies that needed to be corrected, and granting him leave to file an amended complaint 24 within thirty days. (ECF No. 8.) Plaintiff did not file an amended complaint or otherwise respond 25 to the Court’s October 30, 2023 order. Therefore, on December 11, 2023, the Court ordered 26 Plaintiff to show cause within fourteen (14) days why the action should not be dismissed. (ECF 27 No. 11.) Plaintiff failed to respond to the December 11, 2023 order and the time to do so has 28 passed. 1 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 2 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 3 . . . within the inherent power of the Court.” The Court has the inherent power to control its docket 4 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal 5 of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 6 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 7 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 8 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 9 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 10 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 11 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United 12 States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court 13 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 14 prosecution and failure to comply with local rules). 15 “In determining whether to dismiss an action for lack of prosecution, the district court is 16 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 17 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 18 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 19 sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide 20 a court in deciding what to do, and are not conditions that must be met in order for a court to take 21 action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th 22 Cir. 2006) (citation omitted). 23 In this instance, the public’s interest in expeditious resolution of the litigation and the 24 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 25 Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint 26 within thirty days of October 30, 2023 and has not done so. Plaintiff’s failure to comply with the 27 order of the Court by filing an amended complaint hinders the Court’s ability to move this action 28 towards disposition. This action can proceed no further without Plaintiff’s compliance with the 1 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 2 action. 3 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 4 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 5 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 6 The public policy in favor of deciding cases on their merits is greatly outweighed by the 7 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 8 for this action to proceed, Plaintiff is required to file an amended complaint curing the deficiencies 9 in the operative pleading. Despite being ordered to do so, Plaintiff did not file an amended 10 complaint or respond to the order to show cause and this action cannot simply remain idle on the 11 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 12 failure to comply with the Court’s orders. 13 Finally, a court’s warning to a party that their failure to obey the court’s order will result 14 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 30, 2023, order 16 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 17 amended complaint in compliance with this order, the Court will recommend to a district judge 18 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 8.) In 19 addition, the Court’s December 11, 2023, order to show cause specifically stated: “Plaintiff’s 20 failure to comply with this order will result in a recommendation to dismiss the action for the 21 reasons stated above.” (ECF No. 11.) Thus, Plaintiff had adequate warning that dismissal would 22 result from her noncompliance with the Court’s order. 23 V. 24 ORDER AND RECOMMENDATIONS 25 The Court has screened Plaintiff’s complaint and directed Plaintiff to file an amended 26 complaint within thirty days. Plaintiff has failed to comply with the Court’s order to file an 27 amended and has not responded to the Court’s order to show why the action should not be 28 dismissed. In considering the factors to determine if this action should be dismissed, the Court 1 finds that this action should be dismissed for Plaintiff's failure to obey the October 30, 2023 and 2 December 11, 2023 orders, failure to prosecute this action, and failure to state a cognizable claim 3 for relief. 4 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 5 District Judge to this action. 6 Further, it is HEREBY RECOMMENDED that this action be dismissed for Plaintiff’ s 7 failure to comply with a court orders, failure to prosecute, and failure to state a cognizable claim 8 for relief. 9 These Findings and Recommendations will be submitted to the United States District 10 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 11 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 12 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. F- 2 ee 19 | Dated: _January 4, 2024 _ OO UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28