(PC) Howell v. Gallagher

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No. 1:19-cv-0654-JLT (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO FILE A RESPONSE 13 v. (Doc. 1.) 14 J. GALLAGHER, et al., 15 Defendants. THIRTY-DAY DEADLINE 16 Plaintiff has filed complaint asserting constitutional claims against governmental employees 17 and/or entities. (Doc. 1.) Generally, the Court is required to screen complaints brought by inmates 18 seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 19 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 20 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 21 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 23 paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal 24 . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 25 I. Pleading Standard 26 A complaint must contain “a short and plain statement of the claim showing that the pleader 27 is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 28 1 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 3 v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted 4 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 5 marks and citation omitted). While factual allegations are accepted as true, legal conclusions are 6 not. Iqbal, 556 U.S. at 678. 7 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 8 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 9 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 10 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 11 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 12 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 13 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 14 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 15 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 16 at 969. 17 II. Plaintiff’s Allegations 18 Plaintiff’s claims arose while he was incarcerated at California State Prison in Corcoran, 19 California (“CSP-Cor”). He names several CSP-Cor correctional officers as defendants: J. 20 Gallagher, A. Randolph, J Burnes, P. Rodriquez, E. Ruiz, C. Gamboa, and A. Loza. 21 Plaintiff brings this action for violation of his Eighth Amendment rights, for which he seeks 22 damages, injunctive relief, and declaratory relief. The parties are named in their individual and 23 official capacities. Plaintiff’s allegations may be fairly summarized as follows: 24 A. “Food Restriction” 25 Between February and December 2018, Plaintiff filed a separate lawsuit against each of the 26 following defendants: Burnes, Gallagher, Rodriguez, and Randolph. On May 2, 2019, these same 27 defendants placed Plaintiff on “food restriction.” When Plaintiff complained that he needs to take 28 his psychiatric medication with food, Ruiz replied, “You should have thought about all of that 1 before you filed them law suits on my boss, and my partner.” Rodriguez added, “You sued me, and 2 you think you’re going to eat my food, you’re not [eating] any food as long as I’m working here.” 3 When Plaintiff asked for clarification if they were retaliating against him for suing them, Rodriguez 4 responded, “It’s nice to see the dumb ass inmate understands us these days.” Plaintiff claims that 5 two unidentified correctional officers then placed a cement block in front of plaintiff’s food port to 6 prevent other inmates from giving plaintiff food. 7 Plaintiff was not fed any food “from 2nd watch officers” from May 2 through May 7. It is 8 unclear if Plaintiff ate at other points during that period—for example, when the “2nd watch 9 officers” were not on duty—or if he was denied all food during this period. 10 B. Denial of Inmate Grievance Form 11 Plaintiff requested an inmate grievance form from defendant Burnes so that he could 12 challenge the food restrictions. Burnes denied plaintiff the form, stating “Oh, you are also on 13 complaint restriction as well.” 14 C. Threats 15 On May 2, 2019, defendants Burnes, Gamboa, and Ruiz attempted to enter plaintiff’s cell to 16 physically assault him. When they failed to gain entry, Burnes made the following verbal threat: 17 “Boy! You better not ever untie this fucken cell door, I got just the thing for you’er bitch ass, 18 you;er all mines [sic].” 19 D. Pepper Spray 20 On May 3, 2019, defendant Burnes, Loza, Rodriguez, and Ruiz approached plaintiff’s cell. 21 Burnes stated, “you don’t have to come out of your cell, we got something for you,” at which point 22 Ruiz opened the food port to plaintiff’s cell, and Rodriguez sprayed plaintiff in the face with pepper 23 spray. Rodriguez then said, “that’s for suing me you little rat.” Loza and Burnes then loudly 24 accused plaintiff of being a snitch in front of other inmates. 25 III. Discussion 26 A. Denial of Food 27 The Eighth Amendment protects a prisoner’s right to receive food “adequate to maintain 28 health.” Lemaire v. Maas, 12 F.3d 1444, 1456 (9th Cir. 1993). The Ninth Circuit has held that 1 denial of 16 meals in 23 days “is a sufficiently serious deprivation because food is one of life's 2 basic necessities.” Foster v. Runnels, 554 F.3d 807, 812–13 (9th Cir. 2009). In that case, the 3 court did not reach the conclusion whether the meals plaintiff did receive were adequate to 4 maintain his health. Other cases finding a sufficiently serious deprivation involve the plaintiff 5 being deprived of food entirely for more than two consecutive days. See Dearman v. Woodson, 6 429 F.2d 1288, 1289 (10th. Cir. 1970) (no food for twelve days); Reed v. McBride, 178 F.3d 7 849, 853 (7th Cir. 1999) (“infirm” plaintiff did not receive food for 3–4 days at a time); Robles 8 v. Coughlin, 725 F.2d 12, 16 (2d Cir. 1983) (no food for 12 days, some consecutive, out of 53– 9 day period). In another case, the Eighth Circuit found that depriving plaintiff of four consecutive 10 meals in two days is a sufficiently serious deprivation. Simmons v. Cook, 154 F.3d 805, 809 11 (8th Cir. 1998). 12 Plaintiff claims that he was denied food “from 2nd watch officers” for six consecutive 13 days. While the allegations are not entirely clear as to whether he missed only one meal per day 14 or if he was not fed at all for consecutive days, his allegations suggest that he was unable to take 15 his psychiatric medication when his meals were withheld. Because the denial of food impacted 16 his psychiatric care, the Court finds that he has adequately asserted a claim against defendants 17 Burnes, Gallagher, Rodriguez, and Randolph. 18 B. Retaliation 19 Plaintiff also accuses several defendants of retaliating against him. The fundamentals of 20 a retaliation claim are easily summarized: “Within the prison context, a viable claim of First 21 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 22 adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that 23 such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did 24 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567- 25 68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)). It is the 26 plaintiff's burden to prove each of these elements. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 27 1995). 28 Under the first element, plaintiff need not prove that the alleged retaliatory action, in 1 itself, violated a constitutional right. Pratt, 65 F.3d at 806 (to prevail on a retaliation claim, 2 plaintiff need not “establish an independent constitutional interest” was violated); see also Hines 3 v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997) (upholding jury determination of retaliation based 4 on filing of a false rules violation report); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) 5 (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation 6 claim). The interest cognizable in a retaliation claim is the right to be free of conditions that 7 would not have been imposed but for the alleged retaliatory motive. 8 To prove the second element – retaliatory motive – plaintiff must show that his protected 9 activities were a “substantial” or “motivating” factor behind the defendant's challenged conduct. 10 Brodheim v. Cry, 584 F.3d 1262, 1269, 1271 (9th Cir. 2009). Plaintiff must provide direct or 11 circumstantial evidence of defendant's alleged retaliatory motive; mere speculation is not 12 sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir. 2011); accord Wood v. 13 Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant's knowledge 14 of plaintiff's protected conduct, circumstantial evidence of motive may include: (1) proximity in 15 time between the protected conduct and the alleged retaliation; (2) defendant's expressed 16 opposition to the protected conduct; and (3) other evidence showing that defendant's reasons for 17 the challenged action were false or pretextual. McCollum, 647 F.3d at 882. 18 The third element concerns a prisoner's First Amendment right to access the courts. 19 Lewis v. Casey, 518 U.S. 343, 346 (1996). While prisoners have no freestanding right to a 20 prison grievance process, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), “a prisoner's 21 fundamental right of access to the courts hinges on his ability to access the prison grievance 22 system.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by 23 Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). Because filing administrative grievances and 24 initiating civil litigation are protected activities, it is impermissible for prison officials to 25 retaliate against prisoners for engaging in these activities. Rhodes, 408 F.3d at 567–68. Protected 26 speech also includes an inmate's statement of intent to pursue an administrative grievance or 27 civil litigation. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes, 408 F.3d at 567; 28 Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 1 Under the fourth element, plaintiff need not demonstrate a “total chilling of his First 2 Amendment rights,” only that defendant's challenged conduct “would chill or silence a person of 3 ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568–69 4 (citation and internal quotation marks omitted). Moreover, direct and tangible harm will support 5 a retaliation claim even without demonstration of a chilling effect on the further exercise of a 6 prisoner's First Amendment rights. Id. at 568 n.11. “[A] plaintiff who fails to allege a chilling 7 effect may still state a claim if he alleges he suffered some other harm” as a retaliatory adverse 8 action. Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 568 n.11). 9 Regarding the fifth element, the Ninth Circuit has held that preserving institutional order, 10 discipline, and security are legitimate penological goals that, if they provide the motivation for 11 an official act taken, will defeat a claim of retaliation. Barnett v. Centoni, 31 F.3d 813, 816 (9th 12 Cir. 1994); Rizzo, 778 F.2d at 532. When considering this final factor, courts should “‘afford 13 appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate 14 penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (quoting Sandin 15 v. Conner, 515 U.S. 472, 482 (1995)). Plaintiff bears the burden of pleading and proving the 16 absence of legitimate correctional goals for defendant's challenged conduct. Pratt, 65 F.3d at 17 806. A plaintiff must prove that the alleged retaliatory motive was the but-for cause of the 18 challenged actions. Hartman v. Moore, 547 U.S. 250, 260 (2006). 19 Plaintiff asserts that between February and December 2018, he filed a separate lawsuit 20 against defendants Burnes, Gallagher, Rodriguez, and Randolph. Then, in early May 2019, these 21 defendants denied plaintiff food over the span of several days after making statements 22 referencing the lawsuits. Because it appears the denial of food furthered no legitimate 23 penological goal, the Court finds that plaintiff has asserted a cognizable First Amendment 24 retaliation claim against these defendants on these facts. 25 Plaintiff also alleges a cognizable claim against Burnes, Loza, Rodriguez, and Ruiz for 26 pepper spraying plaintiff on May 3, 2019. The allegations reveal a direct link to plaintiff’s 27 protected activity. There is also no suggestion that the use of the pepper spray was intended to 28 restore or maintain order. As such, appears to be a gratuitous use of force. 1 Per plaintiff, it was in that context that Loza, Rodriguez, and Burnes accused plaintiff of 2 being a snitch in front of other inmates. Considering the timing of this label and the statements 3 made by others regarding plaintiff’s litigation activity and the potential for harm from other 4 inmates for being labeled a snitch, the Court construes this as a retaliation claim. See 5 Valandingham v. Bojorquez, 866 F.2d 1135, 1140 (9th Cir. 1989) (plaintiff stated a cognizable 6 claim when he alleged defendant labeled him a snitch in retaliation for seeking legal redress for 7 his grievances). 8 C. Excessive Force 9 The gratuitous use of force addressed in the context of plaintiff’s First Amendment 10 retaliation claim also states an Eighth Amendment excessive force claim. When prison officials 11 use excessive force against prisoners, they violate the inmates’ Eighth Amendment right to be 12 free from cruel and unusual punishment.” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). 13 In order to establish a claim for the use of excessive force in violation of the Eighth Amendment, 14 a plaintiff must establish that prison officials applied force maliciously and sadistically to cause 15 harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 16 503 U.S. 1, 6-7 (1992). In making this determination, the court may evaluate (1) the need for 17 application of force, (2) the relationship between that need and the amount of force used, (3) the 18 threat reasonably perceived by the responsible officials, and (4) any efforts made to temper the 19 severity of a forceful response. Id. at 7; see also id. at 9-10 (“The Eighth Amendment's 20 prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition 21 de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the 22 conscience of mankind.” (internal quotation marks and citations omitted)). 23 Plaintiff alleges that while he was in his cell, defendant Ruiz opened the food port to 24 plaintiff’s cell while Rodriguez sprayed plaintiff in the face with pepper spray. Since there 25 appears to have been no need for that use of force and the allegations suggest no threat posed by 26 plaintiff, these allegations are sufficient to proceed against Ruiz and Rodriguez on an excessive 27 force claim. 28 /// 1 D. Failure to Protect 2 A prison official may be liable under 42 U.S.C. § 1983 if he is aware that a fellow officer 3 is violating a prisoner's constitutional rights but fails to intervene. Cunningham v. Gates, 229 F.3d 4 1271, 1289 (9th Cir. 2000) (“[P]olice officers have a duty to intercede when their fellow officers 5 violate the constitutional rights of a suspect or other citizen.”); see also Gaudreault v. Municipality 6 of Salem, 923 F.2d, 203, 207 n. 3 (1st Cir. 1990) (“An officer who is present at the scene who fails 7 to take reasonable steps to protect the victim of another officer's use of excessive force can be held 8 liable under section 1983 for his nonfeasance.”). The failure to intervene can support an excessive 9 force claim where the bystander-officers had a realistic opportunity to intervene but failed to do 10 so. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003); Cunningham, 229 F.3d at 1289; 11 Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). 12 Plaintiff also asserts a failure to protect claim, which is presumably aimed at Burnes and 13 Loza, who witnessed Rodriguez and Ruiz participate in the pepper spraying of plaintiff but failed 14 to intervene. At this stage, the Court finds that plaintiff has stated a cognizable claim against these 15 defendants. 16 E. Verbal Threats 17 Mere verbal harassment or abuse, including the use of racial epithets, does not violate the 18 Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski 19 v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). In addition, threats do not rise to the level of a 20 constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). While plaintiff contends 21 that he was subjected to verbal threats by defendant Burnes, these allegations fail to state a claim. 22 F. Failure to Exhaust 23 Finally, plaintiff admits in the complaint that he did not exhaust his administrative 24 remedies prior to filing this action. By way of explanation, plaintiff contends that defendant 25 Burnes refused to give him an inmate grievance form on May 2, 2019, when plaintiff sought to 26 challenge the food restriction, claiming that plaintiff was on “complaint restriction” as well. 27 Plaintiff is forewarned that his complaint may be subject to a motion for summary judgment for 28 failure to exhaust administrative remedies. 1 Plaintiff’s claims are subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. 2 § 1997e(a). Under the PLRA, “[n]o action shall be brought with respect to prison conditions 3 under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, 4 prison, or other correctional facility until such administrative remedies as are available are 5 exhausted.” 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s 6 exhaustion requirement applies to all prisoners seeking redress for prison circumstances or 7 occurrences”). “[T]hat language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said 8 more conversationally, may not bring any action) absent exhaustion of available administrative 9 remedies.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 10 85 (2006); Jones v. Bock, 549 U.S. 199, 211 (2007)). Dismissal for failure to state a claim is 11 appropriate where “a failure to exhaust is clear on the face of the complaint.” Albino v. Baca, 12 747 F.3d 1162, 1166 (9th Cir. 2014) (defendant may move for dismissal under Rule 12(b)(6) 13 where exhaustion is clear on the face of the complaint); Davis v. Cal. Dep't of Corr. and Rehab., 14 474 Fed. Appx. 606, 607 (9th Cir. 2012) (district court properly dismissed case where it was 15 clear on face of complaint that administrative remedies were not exhausted prior to filing). 16 When the district court concludes that the prisoner has not exhausted administrative 17 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 18 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 19 Albino, 747 F.3d at 1168. 20 The State of California provides its inmates and parolees the right to appeal 21 administratively “any policy, decision, action, condition, or omission by the department or its 22 staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or 23 her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available 24 administrative remedies, a prisoner must proceed through three formal levels of appeal and 25 receive a decision from the Secretary of the CDCR or his designee. Id. § 3084.1(b), § 26 3084.7(d)(3). 27 IV. Conclusion 28 Plaintiff’s complaint several cognizable claims: (1) an Eighth Amendment claim for denial 1 of food against Burnes, Gallagher, Rodriguez, and Randolph; (2) a First Amendment retaliation 2 claim against Burnes, Loza, Rodriguez, and Ruiz; (3) an Eighth Amendment excessive force claim 3 against Ruiz and Rodriguez; and (4) an Eighth Amendment failure to protect claim against Burnes 4 and Loza. 5 The remaining claims are not cognizable as pled. The Court will grant plaintiff the 6 opportunity to file an amended complaint to cure noted defects, to the extent he believes in good 7 faith he can do so. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Alternatively, plaintiff 8 may forego amendment and notify the Court that he wishes to stand on his complaint. See Edwards 9 v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 10 amendment). 11 If plaintiff does not wish to file an amended complaint, and he is agreeable to proceeding 12 only on the claim found to be cognizable, he may file a notice informing the Court that he does 13 not intend to amend, and he is willing to proceed only on his cognizable claim. The undersigned 14 will then recommend that his remaining claims be dismissed, and the Court will provide 15 information regarding the process for obtaining subpoenas duces tecum. 16 If plaintiff chooses to amend, he must demonstrate that the alleged acts resulted in a 17 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth 18 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting 19 Twombly, 550 U.S. at 555). Plaintiff should note that although he has been given the opportunity 20 to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 21 Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully read this screening order and 22 focus his efforts on curing the deficiencies set forth above. 23 If plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it must 24 state what each named defendant did that led to the deprivation of plaintiff’s constitutional rights, 25 Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual allegations must be 26 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 27 (citations omitted). 28 Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay, 375 F.2d 1 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the prior or 2 superseded pleading,” E.D. Cal. Local Rule 220. Accordingly, the Court ORDERS: 3 1. The Clerk’s Office shall send plaintiff a blank civil rights complaint form; 4 2. Within 30 days from the date of service of this order, plaintiff must: 5 a. File an amended complaint curing the deficiencies identified by the Court in 6 this order, or 7 b. Notify the Court in writing that he does not wish to file an amended complaint 8 and he is willing to proceed only on the claim found to be cognizable in this 9 order; or 10 c. Notify the Court in writing that he wishes to stand on his complaint as written; 11 and 12 3. If plaintiff fails to comply with this order, the undersigned will recommend the action 13 be dismissed for failure to obey a court order and failure to prosecute. 14 IT IS SO ORDERED. 15 16 Dated: November 26, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28