(PC) Hardney v. Warren

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JOHN HARDNEY, No. 2:16-cv-172-KJM-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 R. WARREN, et al., 15 Defendants. [16] 17 Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”) inmate 18 proceeding without counsel in an action brought under 42 U.S.C. § 1983 . He filed this action on 19 January 27, 2016 (ECF No. 1) and, after filing an amended complaint (ECF No. 10), the court 20 found that he had stated: (1) a cognizable Eighth Amendment excessive force claim against 21 defendants Pogue, Hickman, Almodovar, and Brazil; and (2) a cognizable Eighth Amendment 22 deliberate indifference to medical needs claim against defendant Kumeh. ECF No. 16 at 2. 23 Defendants Almodovar, Hickman, Pogue, and Kumeh move to dismiss.1 ECF No. 75. 24 Plaintiff has filed an opposition. ECF No. 79. For the reasons stated hereafter, it is recommended 25 that defendants’ motion be granted in part. 26 ///// [27] 28 1 Defendant Brazil is not a party to the motion to dismiss. ECF No. 75 at 3 n.1. 1 Plaintiff has also filed what the court construes as a motion for injunctive relief. ECF No. 2 78. As discussed below, that motion should be denied without prejudice. 3 Motion to Dismiss 4 I. Legal Standards 5 A complaint may be dismissed under that rule for “failure to state a claim upon which 6 relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to 7 state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 8 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility 9 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 10 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 11 (2009) (citing Twombly, 550 U.S. at 556 ). The plausibility standard is not akin to a “probability 12 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 13 Iqbal, 556 U.S. at 678 . 14 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 15 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 16 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 17 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 18 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 19 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 20 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 21 at 956 . Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 22 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). 23 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 24 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as 25 true unreasonable inferences or conclusory legal allegations cast in the form of factual 26 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 27 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 28 ///// 1 II. Background 2 A. Plaintiff’s Allegations 3 Plaintiff alleges that, on October 10, 2014, defendant Pogue approached his cell and 4 informed him that he was there to “counsel plaintiff on masturbation.” ECF No. 10 at 7. Plaintiff 5 told Pogue to leave and the latter informed him that a non-party prison official had seen him 6 masturbating in his cell. Id. At 7-8. Plaintiff alleges that he deemed Pogue’s comments to be 7 harassment and “told him to get the [s]ergeant.” Id. At 8. He was handcuffed and escorted by 8 “three or four officers” to the unit medical clinic. Id. Defendant Almodovar was allegedly 9 among these officers. Id. 10 Plaintiff allegedly arrived at the medical clinic to find more officers waiting for him, 11 including defendant Hickman. Id. Defendant Kumeh – a nurse – is also alleged to have been 12 present. Id. Someone – the complaint does not specify who – told plaintiff that he would be 13 rehoused in administrative segregation for indecent exposure. Id. Plaintiff alleges that, at that 14 time, he did nothing more than verbally express his disbelief that he was being punished. Id. 15 Defendant Pogue allegedly responded to these comments by slamming plaintiff’s head into a 16 plexiglass window. Id. Pogue also allegedly forced plaintiff’s handcuffed hands above his head, 17 resulting in a dislocated shoulder. Id. 18 After the use of force, Pogue allegedly pushed plaintiff out of the clinic and the other 19 officers followed. Id. The group entered the unit “Program Office” and, unprompted, Pogue 20 allegedly “rammed” plaintiff’s head into a concrete wall. Id. Pogue then allegedly slammed 21 plaintiff to the ground and the other officers allegedly applied their bodyweight against him. Id. 22 Plaintiff alleges that defendants Hickman and Almodovar failed to intervene to stop Pogue’s use 23 of force and declined to report his behavior to their superiors. Id. at 9. 24 With respect to Kumeh, plaintiff alleges that this defendant declined to treat his injuries 25 after the foregoing events and authored a medical report which falsely indicated that he had 26 suffered no physical harm. Id. 27 ///// 28 ///// 1 B. State Criminal Conviction 2 In conjunction with their motion, defendants have submitted court records from Amador 3 County Superior Court which indicate that, on June 22, 2018, a jury found plaintiff guilty of 4 resisting an executive officer in contravention of section 69 of the California Penal Code. ECF 5 No. 75-1 at 630. Defendants have requested that the court take judicial notice of these records 6 and it will do so. See, e.g., United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (indicating 7 that court records are appropriate for judicial notice); Headwaters Inc. v. U.S. Forest Service, 399 8 F.3d 1047 , 1051 n. 3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are 9 appropriate for judicial notice.”) (internal quotation marks and citation omitted). 10 Review of foregoing superior court records make clear that plaintiff’s section 69 11 conviction stems from the events of October 10, 2014 – the same events which underly his claims 12 against the moving defendants. See ECF No. 75-1 at 105-107, 562-567. With respect to the 13 charge of resisting an executive officer, the court instructed the jury: 14 The defendant is charged in Count 1 with resisting an executive officer in the performance of that officer’s duty. To prove the 15 defendant is guilty of this crime, the People must prove that: One, the defendant unlawfully used force or violence to resist an executive 16 officer; two, when the defendant acted, the officer was performing his lawful duties; and three, when the defendant acted, he knew the 17 executive officer was performing his duty. 18 An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A correctional 19 officer employed by the Department of Corrections and Rehabilitation is an executive officer. [20] A peace officer is not lawfully performing his duties if he is using 21 unreasonable or excessive force. 22 The People have the burden of proving beyond a reasonable doubt that a correctional officer was lawfully performing his duties as a 23 custodial officer. If the People have not met this burden, you must find not guilty of Count 1. A custodial officer is not lawfully 24 performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Special rules control the use of 25 force. A custodial officer may use un (sic) – may use reasonable force in his or her duties to restrain a person, to overcome resistance, 26 to prevent escape or in self defense. If a person knows or reasonably should know that a custodial officer is restraining him or her, that 27 person must not use force or any weapon to resist an officer’s use of reasonable force. [28] 1 Id. at 542-543. As noted above, the jury returned a guilty verdict as to this count. Id. at 600, 630. 2 III. Analysis 3 Defendants argue that success on his excessive force claims in this suit would necessarily 4 imply the invalidity of plaintiff’s conviction for resisting an executive officer – detailed supra. 5 ECF No. 75 at 7. The court agrees. It is long-settled law that a prisoner cannot recover damages 6 in a section 1983 lawsuit if judgment in his favor would imply the invalidity of a conviction or 7 sentence that has not been reversed, expunged, or called into question by the issuance of a habeas 8 writ. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff’s conviction remains valid and 9 plaintiff does not allege otherwise in his opposition.2 And there is little question that the criminal 10 conviction and plaintiff’s allegations in this civil action arise out of the same incident. 11 At trial, the prosecution presented evidence that, on October 10, 2014, a psychiatric 12 technician observed plaintiff masturbating in his cell and reported that action to defendant Pogue. 13 ECF No. 75-1 at 111-117. The prosecution also presented evidence that defendants Pogue and 14 Hickman escorted plaintiff to the medical clinic after the technician alerted them to plaintiff’s 15 conduct. Id. at 168, 177-178. The prosecution then presented testimony from defendant Pogue 16 that, at the clinic and once a medical evaluation of plaintiff was underway, plaintiff attempted to 17 pull away from the officer. Id. at 180. Pogue testified that he gave plaintiff several verbal 18 commands to stop pulling away, but the latter did not comply. Id. He further testified that, once 19 plaintiff refused to comply with his commands, he used his body weight to press plaintiff against 20 the wall and regain compliance. Id. at 180-181. Pogue testified that, after the medical 21 evaluation, plaintiff was escorted to the program office where force was again necessary – this 22 time with assistance from defendant Hickman – to subdue a physically resisting plaintiff. Id. at 23 183-188. The foregoing tracks the arc of plaintiff’s allegations: on October 10, 2014 he was 24 accused by a technician of masturbating in his cell, he was escorted by officers to the medical 25 clinic and then to the program office, and force was employed at both locations. Obviously, [26] 27 2 To be sure, he claims that the criminal case and its outcome was “a complete sham,” but that is his own assessment and there is no indication that any relevant court has reached a similar 28 conclusion. ECF No. 79 at 2. 1 plaintiff’s allegations diverge insofar as he claims that the force deployed against him was 2 excessive and wholly unnecessary, but the incident referenced is unambiguously the same. 3 The jury, as noted supra, was instructed by the trial judge that plaintiff could only be 4 found guilty of resisting an executive officer if the offiers in question were performing their 5 lawful duties. Id. at 542. The exercise of an officer’s lawful duties, the trial judge instructed, 6 could not include the use of unreasonable or excessive force. Id. at 542-543. It follows, then, that 7 the jury found that defendants Pogue and Hickman did not employ excessive force against during 8 their interactions with plaintiff on October 10, 2014. Thus, the immediate excessive force claims 9 are barred by Heck. See Beets v. County of Los Angeles, 669 F.3d 1038, 1045 (9th Cir. 2012) 10 (“The jury that convicted Morales determined that Deputy Winter acted within the scope of his 11 employment and did not use excessive force. . . . [T]hus any recovery by the plaintiff’s in this 12 civil [excessive force] action would be contrary to the jury’s determination.”); see also Smith v. 13 City of Hemet, 394 F.3d 689 , 699 n. 5 (9th Cir. 2005) (“[A] jury’s verdict necessarily determines 14 the lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct, 15 and any action alleging the use of excessive force would ‘necessarily imply the invalidity of his 16 conviction.’”) (quoting Susag v. City of Lake Forest, 94 Cal. App. 4th 1401, 1410 , 115 Cal. Rptr. 17 2d 269, (Cal. Ct. App. 2002)). 3 18 Based on the foregoing, Heck bars plaintiff’s excessive force claims against defendants 19 Pogue and Hickman. Plaintiff’s inability to pursue an excessive force claim against Pogue and 20 Hickman necessarily dooms his failure to intervene claim against defendant Almodovar. 21 Almodovar could only have had a duty to intervene if Pogue or Hickman’s use of force was 22 violative of plaintiff’s constitutional rights. See, e.g., Cunningham v. Gates, 229 F.3d 1271 , 1289 23 (9th Cir. 2000) (“[P]olice officers have a duty to intercede when their fellow officers violate the [24] 3 There is no indication that separate factual contexts exist between the conduct leading to [25] plaintiff’s conviction and that which gives rise to the immediate section 1983 claim. That is, 26 there is no viable argument that the use of excessive force relevant to this civil case occurred before or after the conduct on which his criminal conviction was based. Indeed, as defendants 27 point out, the operative complaint alleges that plaintiff did nothing to merit the use of any force whatsoever on the day in question. In any event, to the extent plaintiff raises such an argument, it 28 appears to be foreclosed by the Ninth Circuit’s holding in City of Hemet. 1 constitutional rights of a suspect or other citizen.”) (citation omitted). Thus, a judgment against 2 Almodovar would also imply the invalidity of plaintiff’s conviction. 3 The court declines, however, to recommend dismissal of defendant Kumeh. This 4 defendant argues for dismissal because, during the criminal trial: (1) defendant Pogue and Kumeh 5 testified that they did not observe any injuries to plaintiff after the use force (ECF No. 75-1 at 6 181-182, 434-435); and (2) defendant Kumeh testified that he had never refused to treat an 7 injured inmate (id. at 439). But defendants have not provided any indication or argument that the 8 jury was required to believe the foregoing testimony in order to convict plaintiff. Theoretically, 9 the jury could have believed that, pursuant to a lawful use of force by the correctional officers, 10 plaintiff sustained injuries which Kumeh then refused to treat. 11 Motion for Injunctive Relief 12 Plaintiff has filed a “motion requesting [a] court order directing ‘defendants and/or prison 13 official to provide plaintiff with ‘all’ of his property items . . . needed to prosecute this civil 14 action.” ECF No. 78. Therein, plaintiff argues that he has recently been transferred to a different 15 facility within the CDCR and was, consequently, separated for a time from his property – 16 including his legal materials. Id. at 1. He claims that, on September 28, 2019, he was issued four 17 boxes of his property but several items were missing, including: (1) a television; (2) clothing 18 items; (3) books he had authored; and (4) unspecified legal documents related to this action and 19 required to oppose defendants’ pending motion to dismiss. Id. at 2. In terms of relief, plaintiff 20 requests a “protective order to prevent [him] from suffering further abuse [and] oppression while 21 prosecuting this civil case.” Id. 22 I. Legal Standards 23 A preliminary injunction represents the exercise of a far-reaching power not to be 24 indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141 , 25 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must demonstrate 26 “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 27 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 28 is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing 1 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has also held 2 that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing the 3 elements of the preliminary injunction test, so that a stronger showing of one element may offset 4 a weaker showing of another—survives Winter and continues to be valid. Alliance for the Wild 5 Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions 6 going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support 7 issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. 8 II. Analysis 9 Plaintiff’s motion must be denied for several reasons. First, he has failed to identify the 10 specific legal materials which have been withheld and how their absence affects his ability to 11 litigate this case. The court notes that, on October 18, 2019, he did file a lengthy (fifty-five page) 12 opposition to the pending motion to dismiss which included various legal documents appended 13 thereto. See, generally, ECF No. 79. Thus, it is unclear to the court whether the issue plaintiff 14 complains about remains outstanding. Second, the relief plaintiff proposes is broad and vague. 15 As noted supra, he proposes an order to prevent “abuse and oppression” while litigating this case. 16 It is unclear what specific harms plaintiff has in mind to remedy. He has not, for instance, 17 identified specific legal materials and requested an order directing their return. The Ninth Circuit 18 has held that “an injunction must be narrowly tailored . . . to remedy only the specific harms 19 shown by the plaintiffs, rather than ‘to enjoin all possible breaches of the law.’” Price v. City of 20 Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). Third, it is unclear whom the proposed injunction 21 would affect. Plaintiff states that this proposed order would apply to “defendants and/or prison 22 officials.” ECF No. 78 at 3. Plaintiff has not identified which other prison officials – presumably 23 not parties to this action – would be included in that class or how, if at all, they relate to or 24 interact with the defendants. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal 25 court may issue an injunction if it has personal jurisdiction over the parties and subject matter 26 jurisdiction over the claim; it may not attempt to determine the rights of persons not before the 27 court.”). Fourth and finally, plaintiff has made no effort to engage with the Winter factors 28 identified in the foregoing section. 1 The court notes that its recommendation that this motion be denied does not preclude a 2 || more narrowly tailored motion for injunctive relief or, perhaps more appropriately, a separate 3 || action based on the alleged denial of property. 4 Conclusion 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ motion to dismiss (ECF No. 75) be GRANTED in part. The excessive 7 | force claims against defendants Pogue and Hickman and the failure to intervene claim against 8 || defendant Almodovar be dismissed for the reasons stated supra. The motion be denied in all 9 | other respects; and 10 2. Plaintiff’s motion for injunctive relief (ECF No. 78) be DENIED. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 || Dated: December 12, 2019. 19 tid, PDEA 0 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE