(PC) Arteaga v. West ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE O. ARTEAGA, Case No. 2:20-cv-00752-JDP (PC) 12 Plaintiff, ORDER: 13 v. DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS 14 N. WEST, et al., CASE 15 Defendants. DENYING DEFENDANTS’ MOTION TO STRIKE AS UNNECESSARY 16 ECF No. 30 17 18 FINDINGS AND RECOMMENDATIONS 19 THAT PLAINTIFF’S MOTIONS TO AMEND THE COMPLAINT AND TO SET ASIDE 20 VOLUNTARY DISMISSAL BE DENIED 21 ECF Nos. 31 & 32 22 23 I previously screened plaintiff’s first amended complaint pursuant to 28 U.S.C. 24 § 1915A(a). ECF No. 16. I notified plaintiff that the amended complaint stated cognizable 25 Eighth Amendment claims against defendants West and John Doe #1, but that all other claims 26 were insufficiently pled. Id. I granted plaintiff thirty days to advise the court whether he 27 intended to stand on his complaint, file an amended complaint, or proceed on the amended 28 complaint’s cognizable claims, voluntarily dismissing his other claims. Id. After plaintiff 1 notified the court that he wanted to proceed only with his cognizable claims and to voluntarily 2 dismiss all other claims, service was initiated on defendant West. 3 On June 2, 2021, defendant West filed an answer to the complaint. Nearly three months 4 later, plaintiff submitted a purported second amended complaint, which I construe as a proposed 5 second amended complaint. ECF No. 28. West moved to strike the purported second amended 6 complaint, citing plaintiff’s failure first to obtain leave to amend. ECF No. 30. After receiving 7 West’s motion to strike, plaintiff filed a motion for leave to file a second amended complaint, 8 ECF No. 31, and a motion to set aside his voluntary dismissal of the claims previously found to 9 be non-cognizable, ECF No. 32. Defendant West opposes both motions. ECF No. 33. Because 10 plaintiff’s proposed amendments would be futile, I will recommend that his motions for leave to 11 amend and to set aside voluntary dismissal be denied, and I will deny defendant’s motion to strike 12 as unnecessary. 13 Motion for Leave to Amend the Complaint 14 Plaintiff’s motion to amend and his proposed second amended complaint were both filed 15 more than twenty-one days after defendants filed an answer. Consequently, he can only amend 16 his complaint with either defendants’ written consent or the court’s leave. Fed. R. Civ. P. 17 15(a)(2). In determining whether to grant leave to amend, the court considers five factors: 18 “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and 19 (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 20 805, 808 (9th Cir. 2004). “Absent prejudice, or a strong showing of any of the remaining . . . 21 factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” 22 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 23 Defendant West primarily contests the validity and sincerity of plaintiff’s explanation— 24 that he did not understand the choice presented by the screening order and that he “panicked” 25 under the time pressure—noting that plaintiff has filed other lawsuits and motions for extensions 26 of time to file. See ECF No. 30 & 33. Although plaintiff’s conduct appears to have caused undue 27 delay, the mere fact that he has experience in litigation is not enough to conclude that he brought 28 his motion in bad faith. Nevertheless, I find that the allegations added or renewed in his proposed 1 second amended complaint—beyond those that were found to state a claim in the court’s previous 2 screening order—do not state cognizable claims, and so I recommend that his motion for leave to 3 amend be denied as futile. 4 In plaintiff’s first amended complaint, he alleges that on November 24, 2016, former- 5 defendants Sullivan and Thomison took him from his cell, strip-searched him, and escorted him 6 to the exercise yard. ECF No. 15 at 8. He alleges that after some time on the yard, defendants 7 West and John Doe #1—another prison official—searched him again and then escorted him to a 8 transportation cart, where he sat, hands handcuffed behind him, without a seatbelt. Id. at 9. 9 Defendants West and Doe then placed another prisoner in the cart; plaintiff noticed that this 10 prisoner was loosely handcuffed with his hands in front of his body, “giving him a particular 11 advantage” over plaintiff. Id. Once the cart began moving, this inmate produced a shank and 12 stabbed plaintiff several times. Id. Plaintiff received further injury when he fell off the cart 13 during the attack. Id. 14 In screening that complaint, I found that plaintiff stated a potentially cognizable Eighth 15 Amendment failure-to-protect claim against West and Doe #1, but I found that he failed to state a 16 claim against Sullivan and Thomison, because he failed to allege that those individuals were 17 personally involved in the events precipitating the attack. ECF No. 16. I found his retaliation 18 claims too conclusory to state a claim, and I found that his medical care claims against John Doe 19 #2—a prison medical provider—were insufficiently detailed to state a claim and were also 20 insufficiently related to his failure-to-protect claims to be brought in the same action. Id. Finally, 21 I found that he had failed to state a claim against the warden. Id. 22 Plaintiff’s second amended complaint suffers many of the same defects.1 His allegations 23 against Sullivan and Thomison are substantially unchanged. ECF No. 28 at 9. He alleges that 24 these individuals were responsible for searching all inmates before they were brought to the yard 25 1 His allegations against defendant West and the unidentified Doe defendant who helped 26 West load the transportation cart—identified in the second amended complaint as John Doe #2— 27 again state a potentially cognizable Eighth Amendment failure-to-protect claim. See ECF No. 28. I note, however, that his proposed second amended complaint does not appear to strengthen this 28 claim. 1 and that, if they had conducted a more thorough search, they would have identified the knife used 2 to stab him. Id. He fails to allege specific facts indicating that either defendant “knew that [he] 3 faced a substantial risk of serious harm and ‘disregard[ed] that risk by failing to take reasonable 4 measures to abate it.’” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Farmer 5 v. Brennan, 511 U.S. 825, 847 (1994)). Although he states that defendants “have a history of 6 doing half-hearted searches,” he identifies neither particular known flaws in their searches nor 7 prior instances of violence resulting from such “half-hearted searches”; he also acknowledges that 8 they strip-searched and “wanded” him on his way to the yard. ECF No. 28 at 9. At most, the 9 allegations against Sullivan and Thomison could establish negligence, which is insufficient to 10 state a claim under the Eighth Amendment. Cf. Hearns, 413 F.3d at 1041 (holding that a plaintiff 11 stated a failure-to-protect claim by identifying a “longstanding, pervasive, and well- 12 documented . . . series of planned attacks and religious-related violence” to show that the 13 defendant prison officials “had actual knowledge of the risk”) (internal citations omitted). 14 Accordingly, if plaintiff were permitted to amend his complaint, this amendment would again fail 15 at screening.2 16 Likewise, plaintiff’s allegations against defendant Lynch—the warden at his facility—and 17 John Doe #3—an unidentified lieutenant—are insufficient. He alleges that these defendants are 18 responsible as supervisors for the attack, because “the ultimate authority and responsibility falls 19 on the warden’s shoulder [and] the next link in the chain of responsibility . . . falls to [Doe #3].” 20 ECF No. 28 at 13. Unfortunately for plaintiff, supervisory personnel are not liable under § 1983 21 for the actions of their employees. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is 22 no respondeat superior liability under § 1983.”). “A supervisor can be liable in his individual 23 capacity for his own culpable action or inaction in the training, supervision, or control of his 24 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 25 reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th 26 Cir. 2011) (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). Plaintiff 27 2 Substantially similar allegations appeared in plaintiff’s original complaint, and the 28 court’s original screening order identified similar deficiencies. See ECF Nos. 1 & 6. 1 neither alleges facts showing that the supervisory defendants provided inadequate training, 2 supervision, or control of defendants West or Doe #1 nor identifies a particular history of prior 3 similar incidents from which to infer acquiescence to any unconstitutional custom or policy. Cf. 4 Starr, 652 F.3d at1216 (holding that a plaintiff properly pled a supervisory liability claim for 5 deliberate indifference with allegations of “numerous incidents in which inmates . . . [were] killed 6 or injured because of the culpable actions of [] subordinates” and that the supervisor-defendant 7 took no action despite receiving “notice, in several reports, of systematic problems in the county 8 jails”). To the extent that plaintiff alleges the existence of a particular unconstitutional policy of 9 operating transportation carts without seatbelts, he provides no facts indicating that such a policy 10 amounts to deliberate indifference to the safety of inmates, such as a history of injuries or 11 accidents resulting from the lack of seatbelts.3 ECF No. 28 at 13. 12 Finally, plaintiff alleges that defendants Hopkins and Sahota were deliberately indifferent 13 in rendering treatment following the attack, and he claims that Felder provided deficient 14 responses to his health care grievances. Id. at 14, 16. While plaintiff’s medical claims and 15 failure-to-protect claims both bear a connection to his November 2016 injury, they are otherwise 16 factually and legally unrelated and must be brought in separate suits. See George v. Smith, 507 17 F.3d 605, 607 (7th Cir. 2007) (“[M]ultiple claims against a single party are fine, but . . . 18 [u]nrelated claims against different defendants belong in different suits.”).4 19 Therefore, granting leave to amend and allowing plaintiff to proceed on the proposed 20 second amended complaint would be futile. I recommend that plaintiff’s motion for leave to 21 3 Moreover, federal courts have consistently found that, in the absence of additional 22 reckless behavior, the mere “failure to equip a van or bus with seatbelts for the prisoners does not 23 rise to the level of deliberate indifference as a matter of constitutional law.” King v. San Joaquin Cnty. Sheriff’s Dep’t, No. CIV S-04-1158-GEB-KJM-P, 2009 WL 577609, at *4 (E.D. Cal. Mar. 24 5, 2009) (citing Spencer v. Knapheide Truck Equipment Co., 183 F.3d 902, 906 (8th Cir. 1999)); see also Bulkin v. Ochoa, No. 1:13-CV-00388-DAD-EPG PC, 2016 WL 7159286, at *7 (E.D. 25 Cal. Dec. 7, 2016) (“Where there is no evidence of deliberate indifference to an inmate's safety other than failing to provide a seatbelt, especially when none is available, the cases find that [the 26 p]laintiff . . . can only establish that [d]efendants acted negligently.”) (collecting cases). 27 4 Plaintiff’s proposed second amended complaint also names as a defendant J. Lewis, the deputy director of policy and risk management services at California Correctional Health Care 28 Services, but includes no factual allegations against him. 1 | amend and to set aside his voluntary dismissals be denied. 2 Accordingly, it is ORDERED that: 3 1. Defendants’ motion to strike, ECF No. 30, be DENIED as unnecessary, and 4 2. the Clerk of Court assign a district judge to this action. 5 Further, it is RECOMMENDED that: 6 1. Plaintiffs motion to amend the complaint, ECF No. 32, be denied, and 7 2. plaintiff's motion to set aside his voluntary dismissal of defendants Sullivan and 8 | Thomison, ECF No. 31, be denied. 9 I submit these findings and recommendations to the district judge under 28 U.S.C. 10 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 11 | Eastern District of California. Plaintiff may, within 14 days of the service of the findings and 12 | recommendations, file written objections to the findings and recommendations with the court. 13 | That document should be captioned “Objections to Magistrate Judge’s Findings and 14 | Recommendations.” The district judge will review the findings and recommendations under 28 15 | U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time may result in the 16 | waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ July 25, 2022 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28