Ramirez v. Pfeiffer

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] NARCISO RAMIREZ, 11 Case No. 24-cv-01714 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING 13 v. DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO G. HERNANDEZ, et al., 15 CLERK Defendants. [17] 18 Plaintiff, a state inmate currently confined at Kern Valley State Prison (KVSP), 19 filed a civil rights complaint under 42 U.S.C. § 1983 in the Eastern District. Dkt. No. 1. 20 After screening the second amended complaint (“SAC”), Dkt. No. 25, the Eastern District 21 determined it was no longer the proper venue and transferred the matter to this district. 22 Dkt. No. 26. The Court dismissed the SAC with leave to amend to correct deficiencies 23 with respect to several claims against Defendants at Salinas Valley State Prison (“SVSP”). 24 Dkt. No. 39. Plaintiff filed a third amended complaint (“TAC”). Dkt. No. 46. [25] 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 In the TAC, Plaintiff claims that on May 11, 2019, he was beaten by Defendants G. 13 Hernandez, T. Saeturn, R. Alvarez, and J. Sivongsa at SVSP. Dkt. No. 46 at 2-3. 14 Specifically, Plaintiff alleges that while he was lying down in handcuffs and leg restraints, 15 Defendants proceeded to “beat” him “by way of punches, kicks, placing knee of 16 [Plaintiff]’s back with full body weight.” Id. at 3. Plaintiff claims Defendant Sivongsa 17 then dragged him across the floor and threw him into a holding cage while he was still 18 bleeding. Id. Plaintiff claims he suffered damages in “physical, psychological, PTSD 19 expense.” Id. Plaintiff seeks damages, injunctive relief, and “declaratory judgment.” Id. 20 Liberally construed, these allegations are sufficient to state a cognizable excessive 21 force claim against Defendants Hernandez, Saeturn, Alvarez, and Sivongsa under the 22 Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Whitley v. Albers, [23] 475 U.S. 312, 319 (1986). 24 Plaintiff also alleges that Defendant Alvarez later destroyed and trashed his 25 personal property “all while Sgt. Perez, Lt. J. Cermeno, and other officials [were] 26 witnessing such acts.” Dkt. No. 46 at 3. Plaintiff claims Defendant Alvarez did so 1 Defendant Alvarez ordered him not to conduct a medical report or give Plaintiff his inhaler 2 for his asthma attack. Id. The attached papers to the TAC, indicate that Plaintiff filed a 3 grievance against Defendant Alvarez for missing property. Id. at 16-17, 19, 21-22. To 4 whatever extent Plaintiff is seeking damages for the loss of property, he fails to state a 5 claim for relief. Neither the negligent nor intentional deprivation of property states a due 6 process claim under § 1983 if the deprivation was random and unauthorized. See Parratt 7 v. Taylor, 451 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner's hobby 8 kit), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); 9 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate's property). 10 The availability of an adequate state post-deprivation remedy, e.g., a state tort action, 11 precludes relief because it provides sufficient procedural due process. See Zinermon v. 12 Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and therefore provide 13 meaningful hearing prior to, deprivation statutory provision for post-deprivation hearing or 14 common law tort remedy for erroneous deprivation satisfies due process). California law 15 provides such an adequate post-deprivation remedy. See Barnett v. Centoni, 31 F.3d 813 , 16 816-17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810-895 ). Accordingly, this property 17 claim against Defendants Alvarez, Perez, and Cermeno is DISMISSED for failure to state 18 a claim. 19 C. Motion for Appointment of Counsel 20 Plaintiff again requests appointment of counsel and repeats his request for a 21 preliminary injunction and TRO, and to enforce access to law library and access to courts. 22 Dkt. No. 47. The Court first notes that his prior request for a TRO was denied, Dkt. No. 23 37, and he presents no new compelling reason in this recent filing for the Court to 24 reconsider that decision. Furthermore, his request for a stay or extension of time is denied 25 because there are currently no pending deadlines in this matter. 26 As for his request for appointment of counsel, there is no constitutional right to 1 the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. 2 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 3 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 4 1998) (en banc). The decision to request counsel to represent an indigent litigant under § 5 1915 is within “the sound discretion of the trial court and is granted only in exceptional 6 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 7 Plaintiff’s challenges do not distinguish him from other prisoner-plaintiffs to 8 warrant appointment of counsel. Furthermore, Plaintiff was already advised that he should 9 pursue administrative remedies to obtain relief for the challenged conditions at KVSP. 10 Dkt. No. 39 at 4-5. Accordingly, Plaintiff’s motion is DENIED without prejudice for lack 11 of exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 12 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 13 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 14 1986). This denial is without prejudice to the Court’s sua sponte appointment of counsel 15 at a future date should the circumstances of this case warrant such appointment. [16] 17 CONCLUSION 18 For the foregoing reasons, the Court orders as follows: 19 1. The property claim against Defendants Alvarez, Perez, and Cermeno is 20 DISMISSED with prejudice for failure to state a claim for relief. This action shall 21 proceed solely on the excessive force claim against Defendants named below. 22 2. The following Defendants shall be served at SVSP: 23 a. Correctional Officer G. Hernandez 24 b. Correctional Officer R. Alvarez 25 c. Correctional Officer J. Sivongsa 26 d. Correctional Officer T. Saeturn 1 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 2 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 3 on CDCR via email the following documents: the operative complaint and any attachments 4 thereto, Dkt. No. 46, this order of service, and a CDCR Report of E-Service Waiver form. 5 The clerk also shall serve a copy of this order on the plaintiff. 6 No later than 40 days after service of this order via email on CDCR, CDCR shall 7 provide the court a completed CDCR Report of E-Service Waiver advising the court which 8 defendant(s) listed in this order will be waiving service of process without the need for 9 service by the United States Marshal Service (USMS) and which defendant(s) decline to 10 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 11 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 12 days, shall file with the court a waiver of service of process for the defendant(s) who are 13 waiving service. 14 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 15 each defendant who has not waived service according to the CDCR Report of E-Service 16 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 17 forms and copies of this order, the summons and the operative complaint for service upon 18 each defendant who has not waived service. The clerk also shall provide to the USMS a 19 copy of the CDCR Report of E-Service Waiver. 20 3. No later than ninety-one (91) days from the date this order is filed, 21 Defendants shall file a motion for summary judgment or other dispositive motion with 22 respect to the claims in the complaint found to be cognizable above. 23 a. Any motion for summary judgment shall be supported by adequate 24 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 25 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 26 qualified immunity found, if material facts are in dispute. If any Defendant is of the 1 Court prior to the date the summary judgment motion is due. 2 b. In the event Defendants file a motion for summary judgment, the 3 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 4 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 5 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 6 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 7 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 8 motion is filed. 9 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 10 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 11 must come forward with evidence showing triable issues of material fact on every essential 12 element of his claim). Plaintiff is cautioned that failure to file an opposition to 13 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 14 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 15 Ghazali v. Moran, 46 F.3d 52 , 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 16 F.3d 651, 653 (9th Cir. 1994). 17 5. Defendants shall file a reply brief no later than fourteen (14) days after 18 Plaintiff’s opposition is filed. 19 6. The motion shall be deemed submitted as of the date the reply brief is due. 20 No hearing will be held on the motion unless the Court so orders at a later date. 21 7. All communications by the Plaintiff with the Court must be served on 22 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 23 copy of the document to Defendants or Defendants’ counsel. 24 8. Discovery may be taken in accordance with the Federal Rules of Civil 25 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 26 Rule 16-1 is required before the parties may conduct discovery. 1 || court informed of any change of address and must comply with the court’s orders in a 2 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 3 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 4 10. Extensions of time must be filed no later than the deadline sought to be 5 || extended and must be accompanied by a showing of good cause. 6 IT IS SO ORDERED. z || Dated: November 12, 2024 feiinfhaccncan BETH LABSON FREEMAN 8 United States District Judge [11] 3 12 2B [14] o [16] Oo Z 18 [24] 25 PRO! SEBLECR240 1714Ramirez_sve