(PC) Somoza v. Director of California Department of Corrections and Rehabilitation

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 RICARDO M. SOMOZA, Case No. 1:20-cv-01600-ADA-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. STATE A COGNIZABLE CLAIM FOR RELIEF 14 DIRECTOR OF CALIFORNIA DEPARTMENT OF CORRECTIONS 15 AND REHABILITATION, et al., 14-DAY OBJECTION PERIOD 16 Defendants. [17] 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983 . 20 I. INTRODUCTION 21 This Court issued its Second Screening Order on January 6, 2023. (Doc. 21.) The Court 22 found Plaintiff failed to state a claim upon which relief could be granted. (Id. at 5-7.) Plaintiff was 23 granted leave to file a second amended complaint. (Id. at 9-10.) 24 Plaintiff filed his second amended complaint1 on January 27, 2023. (Doc. 22.) 25 Following screening of the second amended complaint, the Court will recommend this 26 action be dismissed for Plaintiff’s failure to state a claim upon which relief can be granted. 27 // 1 II. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 III. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 13 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 14 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 15 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 16 quotation marks & citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662 , 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” [21] Id. (quoting Twombly, 550 U.S. at 570 ). Factual allegations are accepted as true, but legal 22 conclusions are not. Id. (citing Twombly, 550 U.S. at 555 ). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 26 theories. Neitzke v. Williams, 490 U.S. 319 , 330 n.9 (1989). Furthermore, “a liberal interpretation 27 of a civil rights complaint may not supply essential elements of the claim that were not initially 1 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 2 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 3 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 4 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 5 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 6 B. Linkage and Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983 . To state a claim under 9 section 1983, a plaintiff must show a causal connection or link between the actions of the 10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, [11] 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 13 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 14 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740 , 15 743 (9th Cir. 1978) (citation omitted). 16 C. Supervisory Liability 17 Liability may not be imposed on supervisory personnel for the actions or omissions of 18 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 19 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 20 adduce evidence the named supervisory defendants “themselves acted or failed to act 21 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 22 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930 , 934 23 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 24 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 25 no respondeat superior liability under section 1983”). 26 Supervisors may be held liable only if they “participated in or directed the violations, or 27 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040 , 1045 (9th 1 ‘series of acts by others which the actor knows or reasonably should know would cause others to 2 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 3 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 4 inaction in the training and supervision of subordinates). 5 Supervisory liability may also exist without any personal participation if the official 6 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 7 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 8 F.2d 1435 , 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 9 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 10 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 11 deprivation resulted from an official policy or custom established by a ... policymaker possessed 12 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 13 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 14 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 15 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 16 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 17 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 18 IV. DISCUSSION 19 A. Plaintiff’s Complaint 20 Plaintiff’s second amended complaint names Correctional Lieutenant O. Douty, and 21 Correctional Sergeants J. Gonzales, P. Martinez, and Mason, employed at the Sierra Conservation 22 Center, as defendants. (Doc. 22 at 3-4.) By way of relief, Plaintiff seeks a jury trial. (Id. at 4.) 23 Plaintiff’s handwritten complaint identifies two claims. Claim 1 states: “Due process 24 violations, cruel corporal and unusual punishment /or GOSSIP”, elderly abuse, mistreatment and 25 prohibited punishment specifically at issue to have personal safety, unlawfull retaliation, 26 defamation and intimidation abuse ….” (Doc. 22 at 1.) Claim 2 states: “Cruel, corporal and 27 unusual punishment, elderly abuse, mistreatment prohibited punishment specifically at issue to 1 violation.” (Id. at 2.) 2 B. Plaintiff’s Claims 3 Factual Allegations in Claim One 4 Plaintiff states that on April 12, 2020, he observed Defendant J. Gonzales accompanied by 5 a young man who “was very nervous and naïve not normal for a regular Correctional Officer.” 6 (Doc. 22 at 1-2.) During the observation that occurred in the dining hall, Gonzales was “coaching 7 a witness for the purpose of entrapement [sic] the young man was disguise as a Correctional 8 Officer and not a real Correctional Officer as he attempted to pose as one.” (Id. at 2.) Plaintiff 9 asserts the man was too young to be a correctional officer. (Id.) 10 Factual Allegations in Claim Two 11 Plaintiff asserts that on March 30, 2021, Defendant Douty signed and approved an 12 “Administrative Segregation Unit Placement Notice,” alleging Plaintiff “utilized the Health Care 13 Services Request Form (7362) to inform staff of safety concerns follow by an investigation that 14 took place on Sunday April 4th, 2021.” (Doc. 22 at 2.) Plaintiff contends the investigation 15 connects Defendants Martinez and Mason who had Plaintiff “assaulted by incustody informant.” 16 (Id. at 3.) Plaintiff further contends Chief Deputy Warden Easton2 “authorized the release of 17 information, information exposing the plaintiff at imminent danger.” (Id.) 18 C. Analysis 19 Despite two opportunities to cure the deficiencies identified in his original and first 20 amended complaints, Plaintiff again fails to state a claim upon which relief can be granted. 21 Plaintiff has been previously advised that vague and conclusory statements are insufficient to 22 state a claim. (See Doc. 12 at 3-4; Doc. 21 at 5-7.) As the Court previously explained, a complaint 23 must contain short, plain statements of the claim or claims supported by facts. (See Doc. 12 at 324 4; Doc. 21 at 2, 7.) The Court has also previously provided the legal standards applicable to the 25 claims Plaintiff may have intended to assert. (See Doc. 12 at 4-6; Doc. 21 at 7-8.) Plaintiff 26 nonetheless continues to provide vague and conclusory statements and fails to assert any facts [27] 2 Plaintiff does not identify Easton as a defendant in the “IV. Defendants” portion of his second amended 1 supporting a cognizable claim. 2 First Amendment Retaliation 3 Plaintiff was provided the legal standards for asserting a First Amendment claim of 4 retaliation in the First Screening Order issued August 20, 2021 (see Doc. 12 at 4) and again in the 5 Second Screening Order issued January 6, 2023 (see Doc. 21 at 7). Plaintiff’s second amended 6 complaint however fails to allege (1) that a state actor took some adverse action against Plaintiff 7 (2) because of (3) Plaintiff’s protected conduct, and that such action (4) chilled Plaintiff’s 8 exercise of his First Amendment rights, and (5) “the action did not reasonably advance a 9 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 566-68 (9th Cir. 2005). 10 Specifically, Plaintiff’s first claim lacks any facts concerning how Defendant Gonzales’s 11 actions were adverse to Plaintiff, in what protected conduct Plaintiff was engaged, how 12 Gonzales’s actions chilled Plaintiff’s exercise of his First Amendment rights, or how Gonzales’s 13 actions did not reasonably advance a legitimate correctional goal. Regarding Plaintiff’s second 14 claim, while Plaintiff makes vague allegations relating to the filing of a grievance—a protected 15 conduct—he fails to show how any Defendants adverse action chilled the exercise of his First 16 Amendment rights, and he also fails to allege that those actions did not reasonably advance a 17 legitimate correctional goal. 18 In sum, Plaintiff fails to allege a cognizable First Amendment retaliation claim against any 19 defendant. 20 Fourteenth Amendment Due Process 21 Plaintiff was provided the legal standards for asserting a due process claim in the First 22 Screening Order and the Second Screening Order. (See Doc. 12 at 6 & Doc. 21 at 9.) Plaintiff’s 23 second amended complaint nonetheless fails to allege a plausible due process violation. 24 In his first claim for relief, Plaintiff presents no facts concerning any disciplinary 25 violation, or any facts that could be construed to allege a due process violation. In his second 26 claim for relief, Plaintiff refers to placement in administrative segregation, but fails to assert that 27 any of the procedural guarantees to which he is entitled were violated during any disciplinary 1 notice of any disciplinary charges, he was denied an opportunity to present evidence or call 2 witnesses, and he was not provided with a written statement by the factfinder concerning the 3 evidence replied upon for the disciplinary finding. Wolff v. McDonnell, 418 U.S. 539 , 564-470 4 (1974). Therefore, Plaintiff fails to allege a plausible due process claim against any defendant. 5 Eighth Amendment 6 Plaintiff was provided the legal standards for asserting an Eighth Amendment deliberate 7 indifference to serious medical needs claim in both the First Screening Order and the Second 8 Screening Order. (See Doc. 12 at 5-6 & Doc. 21 at 7-8.) However, Plaintiff’s second amended 9 complaint is devoid of facts related to medical needs or care. 10 The Eighth Amendment protects prisoners from inhumane methods of punishment and 11 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 12 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 13 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) 14 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must 15 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 16 Farmer v. Brennan, 511 U.S. 825 , 832–33 (1994) (quotations omitted) 17 In his first claim for relief, Plaintiff contends Defendant Gonzales and another individual 18 disguised as a correctional officer tried to entrap him. Plaintiff fails to explain what may have 19 prompted Gonzales to entrap him. As pled, Plaintiff’s allegations do not amount to any inhumane 20 condition of confinement or to unnecessary or wanton infliction of pain. The same is true of 21 Plaintiff’s second claim for relief. Plaintiff alleges no facts asserting inhumane condition of 22 confinement or unnecessary or wanton infliction of pain. 23 To the extent either of Plaintiff’s claims can be construed to assert a failure to protect 24 under the Eighth Amendment, both claims fail. Prison officials have a duty “to take reasonable 25 measures to guarantee the safety of inmates, which has been interpreted to include a duty to 26 protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) 27 (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) & Hearns v. Terhune, 413 F.3d 1036 , 1 officials acted with deliberate indifference to threat of serious harm or injury to an inmate.” 2 Labatad, 714 F.3d at 1160 (citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 3 2002)). 4 A failure to protect claim under the Eighth Amendment requires a showing that “the 5 official [knew] of and disregard[ed] an excessive risk to inmate ... safety.” Farmer, 511 U.S. at 6 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 7 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 8 ... and a factfinder may conclude that a prison official knew of a substantial risk from the very 9 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 10 serious harm requires that prison officials take reasonable measures to guarantee the safety and 11 well-being of the prisoner. Id. at 832-33 ; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). As 12 “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” plaintiff 13 must allege facts showing the defendant acted with a “sufficiently culpable state of mind.” Wilson 14 v. Seiter, 501 U.S. 294, 297 (1991) (internal quotations marks, emphasis, and citations omitted). 15 With regard to claim one, Plaintiff fails to allege Defendant Gonzales knew of and 16 disregarded an excessive risk to Plaintiff’s safety. Regarding claim two, Plaintiff fails to allege 17 Defendants Douty, Martinez or Mason knew of and disregarded an excessive risk to Plaintiff’s 18 safety. Plaintiff’s vague and conclusory allegations regarding an “incustody informant” and the 19 purported release of unidentified information that exposed Plaintiff to “imminent danger” are 20 insufficient to state a claim. 21 To the extent Plaintiff references “gossip,” some unidentified verbal harassment, or 22 intimidation made by any named defendant in either claim one or two, his second amended 23 complaint fails to state a claim. Mere verbal harassment or abuse does not violate the Constitution 24 and does not give rise to a claim for relief under section 1983. Oltarzewski v. Ruggiero, 830 F.2d 25 136, 139 (9th Cir. 1987). 26 In sum, Plaintiff has failed to allege a cognizable Eighth Amendment claim against any 27 defendant. 1 Defamation 2 Plaintiff vaguely asserts “defamation” in his first claim for relief. To bring a claim for 3 defamation in a Section 1983 action, Plaintiff must meet the “stigma-plus,” or “defamation-plus” 4 standard. 5 “To establish a claim for defamation under Section 1983, a plaintiff must first establish 6 defamation under state law.” Flores v. City of Bakersfield, No. 1:17-CV-1393-JLT, 2019 WL 7 7038385, at *17 (E.D. Cal. Dec. 20, 2019) (citing Crowe v. County of San Diego, 242 F.Supp.2d 8 740, 746 (S.D. Cal. 2003)). Under California law, the elements of a defamation claim are: “(a) a 9 publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural 10 tendency to injure or that causes special damage.” Kaufman v. United Health Group Inc., 546 11 Fed. Appx. 691, 692 (9th Cir.2013) (quoting Taus v. Loftus, 40 Cal.4th 683 , 54 Cal.Rptr.3d 775 , [12] 151 P.3d 1185, 1209 (Cal. 2007)). To be actionable, an allegedly defamatory statement must, 13 among other things, “contain a provably false factual connotation.” Gilbrook v. City of 14 Westminster, 177 F.3d 839, 861 (9th Cir.) (citation omitted). “Under California law, although a 15 plaintiff need not plead the allegedly defamatory statement verbatim, the allegedly defamatory 16 statement must be specifically identified, and the plaintiff must plead the substance of the 17 statement. Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1216 (C.D. Cal. 2004). 18 In a Section 1983 action, injury to reputation alone is not enough to state a claim. “The 19 procedural due process rights of the Fourteenth Amendment apply only when there is a 20 deprivation of a constitutionally protected liberty or property interest.” WMX Techs., Inc. v. 21 Miller (“WMX II”), 197 F.3d 367 , 373 (9th Cir. 1999). The Supreme Court has made it clear that 22 reputation alone is not an interest protected by the Constitution. WMX II, 197 F.3d at 373; see 23 Paul v. Davis, 424 U.S. 693, 706 (1976) (“the Court has never held that the mere defamation of 24 an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the 25 guarantees of procedural due process absent an accompanying loss of government employment”). 26 “[R]eputational harm alone does not suffice for a constitutional claim.” Miller v. California, 355 27 F.3d 1172, 1178 (9th Cir. 2004). Absent a change in status, “any harm or injury to that interest ... 1 recognized by state or federal law.” Paul, 424 U.S at 712. Plaintiff must demonstrate the loss of a 2 recognizable property or liberty interest in conjunction with the allegation that they suffered 3 injury to reputation. Miller, 355 F.3d at 1179; Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 4 1991), rev'd on other grounds, 963 F.2d 1220 , 1235 n.6 (9th Cir. 1992)). A plaintiff can meet this 5 test by showing that “injury to reputation was inflicted in connection with a federally protected 6 right” or that “injury to reputation caused the denial of a federally protected right.” Herb Hallman 7 Chevrolet, Inc. v. Nash–Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Cooper, 924 F.2d at 1532-33 . 8 This is referred to as a “defamation-plus” or “stigma-plus” claim. See, e.g., Flores, 2019 WL 9 7038385, at *17. 10 Here, Plaintiff has not set forth any factual allegations that his reputation was injured in 11 connection with a federally protected right or that the damage caused him to be denied a federally 12 protected right. Even if Plaintiff could not meet the defamation-plus standard but was able to 13 demonstrate defamation under California law, the Court would also decline to exercise 14 supplemental jurisdiction over such state claim because Plaintiff fails to state a separate 15 cognizable federal claim, as set forth above. See Ward v. Webber, No. 118CV00916SABPC, 2018 16 WL 3615853 , at *3 (E.D. Cal. July 26, 2018) (“Because Plaintiff fails to state a cognizable 17 federal claim, the Court will not exercise supplemental jurisdiction over his state law [slander] 18 claim, even if he cures the deficiencies and states a claim”) (citing 28 U.S.C. § 1367 (a); Herman 19 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). 20 D. Further Amendment Would Be Futile 21 For the reasons set forth above, the Court finds the second amended complaint fails to 22 state cognizable civil rights claims under Section 1983 and that any amendment of the complaint 23 would be futile. “A district court may deny leave to amend when amendment would be futile.” 24 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122 , 25 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint lacks merit 26 entirely”). Plaintiff has been afforded two opportunities to amend his complaints to cure the 27 deficiencies identified by the Court, but has been unable to do so. The Court finds further 1 V. CONCLUSION AND RECOMMENDATIONS 2 For the reasons set forth above, IT IS HEREBY RECOMMENDED that Plaintiff’s 3 second amended complaint be dismissed without leave to amend for failure to state a claim. 4 These Findings and Recommendations will be submitted to the district judge assigned to 5 this case, pursuant to 28 U.S.C. § 636 (b)(l). Within 14 days of the date of service of these 6 Findings and Recommendations, a party may file written objections with the Court. The 7 document should be captioned, “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Failure to file objections within the specified time may result in waiver of 9 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 10 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [11] IT IS SO ORDERED. [12] 13 Dated: August 21, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE