(PC) Schessler v. Bass ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH SCHESSLER, Case No. 1:23-cv-01012-BAM (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 10) 14 KOSTECKY, et al., SCREENING ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS 15 Defendants. (ECF No. 8) 16 17 I. Procedural Background 18 Plaintiff Joseph Schessler (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action was removed by Defendants from Madera 20 County Superior Court on July 6, 2023. (ECF No. 1.) All parties have consented to Magistrate 21 Judge jurisdiction. (ECF Nos. 6, 11.) 22 On September 6, 2023, the undersigned screened Plaintiff’s first amended complaint and 23 issued an order directing the Clerk of the Court to randomly assign a District Judge to this action, 24 and findings and recommendations to dismiss certain claims. (ECF No. 10.) However, as noted 25 above, all parties have consented to Magistrate Judge jurisdiction. Accordingly, the erroneously 26 assigned District Judge was removed from this action, (ECF No. 11), and the findings and 27 recommendations are vacated as unnecessary. 28 /// 1 Plaintiff’s first amended complaint, filed September 6, 2023, is therefore currently before 2 the Court for screening. (ECF No. 8.) 3 II. Screening Requirement and Standard 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 6 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 7 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 8 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 16 To survive screening, Plaintiff’s claims must be facially plausible, which requires 17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 19 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 20 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 21 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 22 III. Plaintiff’s Allegations 23 Plaintiff is currently housed at Valley State Prison (“VSP”) in Chowchilla, California, 24 where the events in the complaint are alleged to have occurred. Plaintiff names M. Bass, 25 correctional counsellor II, as the sole defendant.1 Plaintiff alleges as follows. 26 /// 27 1 As it appears Plaintiff has voluntarily dismissed the other defendants named in the original 28 complaint, those individuals will be dismissed from this action. 1 On 5/27/21, Officer Rosa Avila confiscated Plaintiff’s MP3 player and SD card. Plaintiff 2 demanded the return of the property and filed a grievance against Avila. Avila threatened 3 Plaintiff, “sue me and see what happens to you,” and caused Plaintiff to fear violence against him 4 or his property. On 1/12/22, Plaintiff filed a civil complaint against Avila, and the envelope had 5 been opened outside Plaintiff’s presence. On 2/8/22, the Madera County Sheriff served the 6 complaint on Avila at VSP. 7 The lawsuit set in motion a series of acts by correctional officers to retaliate on Plaintiff 8 for filing the lawsuit. On 4/12/22, Defendant Bass contacted Plaintiff for having a potential high 9 risk COVID score. He said Plaintiff would have to appear before the classification committee 10 and would be transferred unless he was vaccinated. Plaintiff said that he already had COVID and 11 that the transfer is retaliatory for Plaintiff filing a lawsuit against an officer. Bass replied, “What 12 did you expect.” On 4/13/22, Plaintiff presented his COVID risk score to the correctional 13 counsellor that his risk score was a low risk 2, not a high risk 3, and requested to see his doctor to 14 correct the COVID risk score. The request to see his doctor would take up to 14 days. Plaintiff 15 had as proof an email from Captain Danbacher stating that inmates who have had a prior COVID 16 infection do not need to be transferred and also showed the counsellor Plaintiff’s granted religious 17 exemption chrono from the COVID vaccination requirements. Plaintiff had had COVID 18 previously. The Counselor telephoned Bass advocating to allow Plaintiff the time to see his 19 doctor. Bass insisted Plaintiff had to appear before the classification committee in six days with 20 proof of vaccination or Plaintiff would be transferred. 21 Plaintiff appeared on 4/19/22 and Bass was the chairperson. Plaintiff provided the 22 COVID documentation showing he had had COVID, the Captain’s email, and the religious 23 exemption chrono. Bass is responsible for confirming the accuracy of inmates’ COVID scores. 24 Bass was deliberately different in not allowing the same opportunity to correct his COVID 25 score as he allowed other inmates. Bass coerced Plaintiff to get a vaccine by threatening a 26 transfer, even though VSP had alternate housing where Plaintiff could have been housed. Bass’ 27 threat had a chilling effect on Plaintiff’s right to religious freedom. “Bass compelled Plaintiff to 28 modify his genuinely held religious beliefs and shamefully waived his religious exemption from 1 the COVID vaccine to avoid transfer. Plaintiff was forced to choose between an adverse transfer 2 or altering his sincerely held religious beliefs. Plaintiff was vaccinated on 4/22/22. Plaintiff was 3 harmed as a result of Bass’ deliberate indifference to Plaintiff’s religious freedom and deprived 4 Plaintiff of his protected liberty interest in bodily integrity. 5 On 4/27/22, Plaintiff met with his treating doctor who said that someone wrongfully 6 added an asthma diagnosis to Plaintiff medical records which elevated Plaintiff’s COVID risk 7 score. The doctor confirmed that Plaintiff was not diagnosed with asthma, and the doctor 8 contacted CCHCS compliance and had Plaintiff’s COVID risk score lowered. If Bass had 9 allowed Plaintiff another fourteen days to meet with the doctor, Plaintiff’s freedom of religion 10 would not have been violated as Plaintiff would not have had to take the COVID vaccine. 11 Bass’ acts were not in furtherance of a legitimate penological interest and had a chilling 12 effect on Plaintiff. Plaintiff feared further retaliation against his person and property if he filed 13 another grievance against an officer. Regardless of Plaintiff’s fear, Plaintiff filed a grievance 14 against Bass and others on 5/14/22. 15 Bass’ action caused Plaintiff to suffer, nervousness, grief, anxiety, depression and other 16 injuries, exacerbating Plaintiff chronic cardiac disease and neurological condition. 17 In claim 1, Plaintiff alleges a First and Fourteenth Amendment violation. Bass’ action 18 deprived Plaintiff of equal protection and to be free from retaliatory punishment from filing 19 grievances and civil actions. Bass retaliated because Plaintiff filed grievances and a civil action 20 and the retaliation chilled Plaintiff’s exercise of his rights. 21 In claim 2, Plaintiff alleges a First and Fourteenth Amendment violation. Bass denied 22 Plaintiff equal protection by failing to provide Plaintiff with a meaningful and reasonable 23 opportunity to remedy Plaintiff’s wrongful COVID risk score as was provided to other similarly 24 situated inmates. In addition, Bass was deliberately indifferent to Plaintiff right to free exercise of 25 religion when Plaintiff refused to acknowledge and honor Plaintiff religious exemption from the 26 COVID vaccine requirement and ignored the email from Captain Danbacher that inmates with 27 prior COVID infection do not need to be transferred. Plaintiff religious beliefs are sincerely held 28 and were approved by the Chaplain, Warden and members of the Religious Review Committee. 1 Plaintiff’s claim is rooted in his religious beliefs. Bass exerted substantial pressure to modify 2 Plaintiff’s’ behavior and beliefs. Plaintiff has suffered loss, damage, loss of liberty, humiliation, 3 embarrassment, alienation from God, mental and emotional distress and physical distress. 4 In claim 3, Plaintiff alleges violation of the Tom Bane Civil Rights Act, Civil Code §52.1. 5 Plaintiff incorporates the prior allegations. Plaintiff alleges “through threat, intimidation, and 6 coercion, Bass retaliated on Plaintiff for engaging in a protected activity, and interfered with 7 Plaintiff’s right to equal protection and fee exercise of religion.” 8 As remedies, Plaintiff seeks compensatory and punitive damages, and statutory penalties. 9 IV. Discussion 10 A. First Amendment - Retaliation 11 “Prisoners have a First Amendment right to file grievances against prison officials and to 12 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 13 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 14 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 15 state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected 16 conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and 17 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 18 F.3d 559, 567–68 (9th Cir. 2005). “[T]he mere threat of harm can be an adverse action....” 19 Brodheim, 584 F.3d at 1270. A plaintiff must plead facts showing that their “protected conduct 20 was the substantial or motivating factor behind the defendant's conduct.” Id. at 1271. To state a 21 cognizable retaliation claim, Plaintiff must establish a nexus between the retaliatory act and the 22 protected activity. Grenning v. Klemme, 34 F. Supp. 3d 1144, 1153 (E.D. Wash. 2014). A prison 23 transfer may also constitute an adverse action. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th 24 Cir. 2005) (recognizing an arbitrary confiscation and destruction of property, initiation of a prison 25 transfer, and assault as retaliation for filing inmate grievances); Pratt v. Rowland, 65 F.3d 802, 26 806 (9th Cir. 1995) (finding that a retaliatory prison transfer and double-cell status can constitute 27 a cause of action for retaliation under the First Amendment). 28 /// 1 Plaintiff claims he engaged in protected conduct of filing a complaint against Officer 2 Aliva, which was served on Officer Avila on 2/8/22. About two months later, Defendant Bass 3 contacted Plaintiff for having a potential high risk COVID score and said Plaintiff would have to 4 appear before the classification committee to be transferred unless he was vaccinated. Plaintiff 5 said that he already had COVID and that the transfer is retaliatory for Plaintiff filing a lawsuit 6 against an officer. Bass replied, “What did you expect.” These allegations raise the inference that 7 Bass knew of the lawsuit because in response to Plaintiff saying Bass was retaliating for Plaintiff 8 filing a lawsuit against an officer, Bass replied “what did you expect.” Plaintiff alleges that the 9 adverse action chilled Plaintiff's First Amendment rights and that it did not reasonably advance a 10 legitimate correctional goal because Plaintiff already had COVID and per the Captain, should not 11 be transferred. Liberally construing the allegations Plaintiff engaged in protected conduct for 12 which he was retaliated. 13 B. First Amendment – Free Exercise of Religion 14 A plaintiff asserting a free exercise claim must show that the defendant's actions 15 substantially burden his practice of religion. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 16 2015). “A substantial burden ... place[s] more than an inconvenience on religious exercise; it must 17 have a tendency to coerce individuals into acting contrary to their religious beliefs or exert 18 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (internal 19 quotation marks and citations omitted). “[A] prison policy that intentionally puts significant 20 pressure on inmates ... to abandon their religious beliefs ... imposes a substantial burden on [the 21 inmate's] religious practice.” Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (internal 22 quotation marks and citation omitted). However, the court has also recognized that limitations on 23 a prisoner's free exercise rights arise from both the fact of incarceration and valid penological 24 objectives. See McElyea v. Babbit, 833 F.2d 196, 197 (9th Cir. 1987). 25 “[A] prisoner's right to free exercise of religion ‘is necessarily limited by the fact of 26 incarceration.’ ” Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (citation omitted). “ ‘To 27 ensure that courts afford appropriate deference to prison officials,’ the Supreme Court has 28 directed that alleged infringements of prisoners’ free exercise rights be ‘judged under a 1 ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of 2 fundamental constitutional rights.’ ” Id. (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 3 (1987).) “The challenged conduct ‘is valid if it is reasonably related to legitimate penological 4 interests.’ ” Id. (quoting O'Lone, 482 U.S. at 349). “A person asserting a free exercise claim must 5 show that the government action in question substantially burdens the person's practice of [his] 6 religion.” Jones, 791 F.3d at 1031; Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). If 7 the inmate makes his initial showing of a sincerely held religious belief, he must establish that 8 prison officials substantially burden the practice of his religion by preventing him from engaging 9 in conduct which he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884-85. 10 “[T]he availability of alternative means of practicing religion is a relevant consideration” for 11 claims under the First Amendment. Holt v. Hobbs, 574 U.S. 352, 135 S. Ct. 853, 862 (2015). 12 Liberally construing the allegations, Plaintiff states a cognizable claim that Defendant 13 Bass forced Plaintiff to act contrary to his religious beliefs and practices and exerted substantial 14 pressure on Plaintiff to modify his behavior in violation of his religious belief. Plaintiff alleges 15 that he had evidence that he was religiously exempt from the COVID vaccination, approved by 16 the Chaplain and Warden, such that he could not be compelled to take the vaccine. That Plaintiff 17 was faced with a choice (an alternative) – take the vaccine or be transferred – does not negate 18 Plaintiff’s claim because availability of alternative means of practicing religion is an evidentiary 19 issue. 20 C. Equal Protection 21 The Equal Protection Clause requires the State to treat all similarly situated people 22 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 23 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 24 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 31 L.Ed.2d 263 25 (1972); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 26 (9th Cir. 1987). 27 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 28 plausibly showing that ‘ “the defendants acted with an intent or purpose to discriminate against 1 [them] based upon membership in a protected class,’ ” (citing Thornton v. City of St. Helens, 425 2 F.3d 1158, 1166 (9th Cir. 2005)) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 3 2001)), or that similarly situated individuals were intentionally treated differently without a 4 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 5 U.S. 591, 601-02, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008); Village of Willowbrook v. Olech, 528 6 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 7 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 8 2008). 9 Plaintiff has not stated a cognizable equal protection claim. Plaintiff does not allege that 10 he was discriminated against because of his membership in any protected class. Plaintiff’s 11 conclusory allegation that he was intentionally treated differently than other similarly situated 12 inmates without a rational relationship to a legitimate state purpose is insufficient. Plaintiff’s 13 conclusory allegations are insufficient. Plaintiff has not provided any factual support for this 14 claim. Fletcher v. Clendenin, No. 1:22-CV-00249 AWI BAM, 2022 WL 2791480, at *5 (E.D. 15 Cal. July 15, 2022) (Equal Protection claim dismissed for failure to allege factual support for 16 denial of treatment based on membership in a protected class). Plaintiff has been unable to cure 17 this deficiency. 18 D. Title 15 and Policy Violation 19 To the extent that Defendant has not complied with applicable state statutes or prison 20 regulations for failure to follow procedures, these deprivations do not support a claim under 21 §1983. Section 1983 only provides a cause of action for the deprivation of federally protected 22 rights. See e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the 23 California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 24 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 25 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11– 26 12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right 27 of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if 28 they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. 1 Cal. Nov. 13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of 2 the California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW 3 (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 4 action under Title 15 of the California Code of Regulations); Tirado v. Santiago, No. 1:22-CV- 5 00724 BAM PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation 6 adopted, No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) 7 (same). 8 E. State Law Claims 9 Plaintiff alleges compliance with the Government Claim Act. To the extent Plaintiff also 10 alleges violations of California law, Plaintiff is informed that the California Government Claims 11 Act requires that a tort claim against a public entity or its employees be presented to the 12 California Victim Compensation and Government Claims Board no more than six months after 13 the cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. 14 Presentation of a written claim, and action on or rejection of the claim are conditions precedent to 15 suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Shirk v. 16 Vista Unified School District, 42 Cal.4th 201, 209 (2007). To state a tort claim against a public 17 employee, a plaintiff must allege compliance with the California Tort Claims Act. Cal. Gov't 18 Code § 950.6; Bodde, 32 Cal.4th at 1244. “[F]ailure to allege facts demonstrating or excusing 19 compliance with the requirement subjects a compliant to general demurrer for failure to state a 20 cause of action.” Bodde, 32 Cal.4th at 1239. 21 Plaintiff attaches as an exhibit to the complaint a “Government Claim.” (ECF No. 8, p. 22 22.) While this document may be subject to subsequent challenge as validly exhausting state 23 remedies, for purposes of screening, the form is sufficient. 24 State Law Claim - California Civil Code section 52.1 25 California Civil Code section 52.1 (“Bane Act”) prohibits a person from interfering or 26 attempting to interfere “by threat, intimidation, or coercion, with the exercise or enjoyment by 27 any individual or individuals of rights secured by the Constitution or laws of the United States, or 28 of the rights secured by the Constitution or laws of this state.” Cal. Civil Code § 52.1(a). “The 1 essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, 2 intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had 3 the right to do under the law or to force the plaintiff to do something that he or she was not 4 required to do under the law.” Austin B. v. Escondido Union School Dist., 149 Cal.App.4th 860, 5 883 (2007) (citing Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998)). 6 Coercion is a required element for a Bane Act claim. See Scalia v. County of Kern, 308 F. 7 Supp. 3d 1064, 1084 (E.D. Cal. 2018) (“A plaintiff bringing a claim pursuant to the Bane Act 8 ‘must show (1) intentional interference or attempted interference with a state or federal 9 constitutional or legal right, and (2) the interference or attempted interference was by threats, 10 intimidation or coercion.’”) (quoting Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 11 (2015), as modified on denial of reh'g (Mar. 6, 2015)); see also Jones v. Kmart Corp., 17 Cal. 4th 12 at 338 (interpreting the Bane Act's use of “interferes” to mean “violates”); Brown v. County of 13 Mariposa, No. 1:18-cv-01541-LJO-SAB, 2019 WL 1993990, at *12 (E.D. Cal. May 6, 2019) 14 (denying a motion to dismiss a Bane Act claim against certain defendants as to whom the plaintiff 15 had adequately stated a deliberate indifference claim, but dismissing the Bane Act claim against 16 other defendants as to whom plaintiff's allegations were deemed insufficient). 17 Liberally construing the allegations, Plaintiff states a cognizable claim against Defendant 18 Bass where Bass threatened and used intimidation related to the alleged retaliatory transfer and to 19 violate Plaintiff’s religious rights by requiring a COVID vaccination. Scalia, 308 F.Supp.3d at 20 1084 (deliberate indifference in an underlying constitutional violation is sufficient for “a coercive 21 act.”) 22 V. Conclusion and Order 23 Based on the foregoing, the Court finds that Plaintiff’s first amended complaint states 24 cognizable claims against Defendant M. Bass, correctional counselor II, for retaliation and for 25 denial of free exercise of religion in violation of the First Amendment, and for violation of the 26 Bane Act, California Civil Code 52.1. However, Plaintiff’s first amended complaint fails to state 27 any other cognizable claims against any other defendants. Despite being provided the relevant 28 pleading and legal standards, Plaintiff has not been able to cure the identified deficiencies and 1 further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. The findings and recommendations issued on September 6, 2023, (ECF No. 10), are 4 VACATED; 5 2. This action SHALL proceed on Plaintiff’s first amended complaint, filed August 25, 2023, 6 (ECF No. 8), against Defendant M. Bass, correctional counselor II, for retaliation and for 7 denial of free exercise of religion in violation of the First Amendment, and for violation of 8 the Bane Act, California Civil Code section 52.1; and 9 3. All other claims and defendants are DISMISSED based on Plaintiff’s failure to state 10 claims upon which relief may be granted. 11 IT IS SO ORDERED. 12 13 Dated: September 7, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28