Hill v. Officer Macias

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA [3] CYMEYON V. HILL, 4 Case No. 21-cv-03189-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL; v. SERVING COGNIZABLE CLAIM; 6 REFERRING CASE TO PRO SE KIMBERLY SEIBEL, et al., PRISONER MEDIATION PROGRAM 7 FOR GLOBAL SETTLEMENT Defendants. PROCEEDINGS; STAYING ACTION; 8 AND DIRECTIONS TO CLERK 9 I. INTRODUCTION 10 Plaintiff, a civil detainee currently being held in custody at California State Prison - 11 Sacramento, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 stemming from 12 alleged constitutional violations at Salinas Valley State Prison (“SVSP”) where he was previously 13 incarcerated. Venue is proper because the events giving rise to the claim is alleged to have 14 occurred in SVSP, which is located in this judicial district. See 28 U.S.C. § 1391 (b). 15 Plaintiff named the following Defendants from SVSP: Warden T. Lemon and Officer 16 Macias. Dkt. 1 at 1.1 He also names the following prison officials from the California 17 Department of Corrections and Rehabilitation (“CDCR”): Psychologist Kimberly Seibel and 18 Counselor Jennifer Weaver. Id. Plaintiff seeks injunctive relief and monetary damages, including 19 punitive damages. Id. at 8 . 20 II. DISCUSSION 21 A. Standard of Review 22 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 25 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 26 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se [27] 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1988). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 4 claim showing that the pleader is entitled to relief.” To comport with Rule 8, “[s]pecific facts are 5 not necessary; the statement need only give the defendant fair notice of what the . . . claim is and 6 the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 7 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 8 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than 9 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 10 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 12 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570 . The United 13 States Supreme Court has explained the “plausible on its face” standard of Twombly: “While legal 14 conclusions can provide the complaint’s framework, they must be supported by factual 15 allegations. When there are well-pleaded factual allegations, a court should assume their veracity 16 and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, [17] 556 U.S. 662, 679 (2009). 18 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: 19 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 20 the alleged violation was committed by a person acting under the color of state law. West v. 21 Atkins, 487 U.S. 42, 48 (1988). 22 A supervisor may be liable under section 1983 upon a showing of personal involvement in 23 the constitutional deprivation or a sufficient causal connection between the supervisor’s wrongful 24 conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435 , 1446 25 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally “is only liable for 26 constitutional violations of his subordinates if the supervisor participated in or directed the 27 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of 2 the constitutional violation.” Redman, 942 F.2d at 1446 ; see Jeffers v. Gomez, 267 F.3d 895 , 917 3 (9th Cir. 2001). 4 B. Legal Claims 5 Plaintiff, who was civilly committed in 1997 following a plea of not guilty by reason of 6 insanity, asserts claims for relief stemming from an incident on March 22, 2021 involving the four 7 aforementioned named Defendants as well as five other unnamed prison officials, from whom he 8 seeks both injunctive relief and monetary damages, including punitive damages. 9 1. Injunctive Relief 10 The threshold question presented is whether the Court has jurisdiction to consider 11 Plaintiff’s claims for injunctive relief, in light of his transfer from SVSP to CSP-Sacramento. 12 When an inmate has been transferred to another prison and there is no reasonable expectation nor 13 demonstrated probability that he will again be subjected to the prison conditions from which he 14 seeks injunctive relief, the claim for injunctive relief should be dismissed as moot. See Dilley v. 15 Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). A claim that the inmate might be returned to the 16 prison where the injury occurred is too speculative to overcome mootness. Id. Here, Plaintiff’s 17 transfer from SVSP to CSP-Sacramento renders moot his claims for injunctive relief. Therefore, 18 the Court DISMISSES Plaintiff’s claim for injunctive relief. 19 2. Monetary Damages 20 The remaining allegation involving monetary damages in the complaint stems from an 21 incident that occurred on March 22, 2021, while Plaintiff was housed at the “C Facility 5 Block” 22 at SVSP. Dkt. 1 at 7. 23 a. Excessive Force Claim 24 A prisoner has the right to be free from cruel and unusual punishment, including physical 25 abuse by guards. Whenever prison officials stand accused of using excessive physical force in 26 violation of the Eighth Amendment, the core judicial inquiry is whether force was applied in a 27 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 1 Plaintiff alleges that on March 22, 2021, he was subjected to excessive force by Defendant 2 Macias. Dkt. 1 at 8. Specifically, Plaintiff alleges that on the date of the incident at 4:30 pm, he 3 was attacked by inmates. Id. Plaintiff then claims that Defendant Macias “repeatedly sprayed 4 Plaintiff in the face with pepper spray [and] using excessive force, retaliation.” Id. Plaintiff 5 further alleges that “he received injuries to [his] eye area[,] a fractured nose [and] severe eye 6 damage from [the] chemical agent [in the] pepper spray and [he] was sent to [an] outside hospital 7 and optometr[ist].” Id. 8 Liberally construed, Plaintiff’s complaint states a cognizable Eighth Amendment claim 9 against Defendant Macias. 10 In addition, Plaintiff mentions five unnamed prison officials in the body of his complaint 11 as allegedly failing to intervene during the alleged acts of excessive force, and thus it seems he 12 wishes to name them as Doe Defendants, whose names he apparently intends to learn through 13 discovery. Dkt. 1 at 8. Although the use of “John Doe” to identify a defendant is not favored in 14 the Ninth Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t 15 of Corrections, 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of 16 alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, the 17 plaintiff should be given an opportunity through discovery to identify the unknown defendants, 18 unless it is clear that discovery would not uncover their identities or that the complaint should be 19 dismissed on other grounds. See Gillespie, 629 F.2d at 642 ; Velasquez v. Senko, 643 F. Supp. 20 1172, 1180 (N.D. Cal. 1986). Plaintiff must provide to the Court the names of these five unnamed 21 prison officials by the due date scheduled in this Order for him to file his amended complaint. 22 Failure to do so will result in dismissal of these Doe Defendants without prejudice to Plaintiff 23 filing new actions against them once their names are known. 24 b. Retaliation 25 Plaintiff alleges that the named Defendants in this case retaliated against him. Dkt. 1 at 6, 26 8. He does not further elaborate on such a retaliation claim. See id. 27 To state a claim for First Amendment retaliation against a government official, a plaintiff 1 subjected to adverse action by the defendant that would chill a person of ordinary firmness from 2 continuing to engage in the protected activity; and (3) there was a substantial causal relationship 3 between the constitutionally protected activity and the adverse action. Mulligan v. Nichols, 835 4 F.3d 983 , 988 (9th Cir. 2016). 5 It is difficult to understand the exact allegations of Plaintiff’s retaliation claim regarding 6 the events that occurred at SVSP on March 22, 2021. As mentioned above, on March 22, 2021, 7 Plaintiff claims that Defendant Macias “repeatedly sprayed Plaintiff in the face with pepper spray 8 [and] using excessive force, retaliation.” Dkt. 1 at 8. Other than a conclusory statement, Plaintiff 9 provides no allegations to support his claim of retaliation nor does he alleged that he was engaged 10 in constitutionally protected activity, as required in order to state a claim for First Amendment 11 retaliation. See Mulligan, 835 F.3d at 988. Thus, Plaintiff has not alleged facts sufficient to 12 support any of the aforementioned elements of retaliation. Plaintiff will be granted the 13 opportunity to amend his retaliation claim in order to bring forth a cognizable claim, if he is able 14 to do so. Plaintiff must provide more support for his allegations because his bare allegations are 15 insufficient to state a retaliation claim under Iqbal. “A claim has facial plausibility when the 16 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . Plaintiff will be provided 18 one final opportunity to amend to better present his retaliation claim. Therefore, Plaintiff’s First 19 Amendment claim is DISMISSED. Because it appears possible that Plaintiff may be able to 20 correct this deficiency as to Defendant Macias, the Court will DISMISS this First Amendment 21 claim against Defendant Macias with leave to amend. If Plaintiff chooses to amend his complaint 22 and re-plead his claim against Defendant Macias, Plaintiff must allege that he engaged in 23 constitutionally-protected conduct, that Defendant Macias took adverse action against him in 24 retaliation for the protected conduct, and that he suffered harm as a result of the retaliation. It is 25 not enough for Plaintiff to state that Defendant Macias used excessive force against him, and 26 instead Plaintiff must link Defendant Macias to his retaliation claim. 27 c. Due Process 1 Amendment rights. Dkt. 1 at 6, 9. He does not further elaborate on such a due process claim. See [2] id. However, the Court notes that Plaintiff indicates that he filed a grievance concerning the 3 claims in this action, even though he was “not required as a civil detainee,” id. at 11, but that it 4 was “still pending [due to an] investigation, id. at 10.” To the extent that Plaintiff is alleging a due 5 process violation in relation to the prison’s failure to grant his grievance, such an allegation does 6 not amount to a due process violation. There is no federal constitutional right to a prison 7 administrative appeal or grievance system for California inmates. See Mann v. Adams, 855 F.2d 8 639, 640 (9th Cir. 1988); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Even if 9 Plaintiff had alleged that his grievance was denied, the denial of an inmate appeal is not so severe 10 a change in condition as to implicate the Due Process Clause itself and the State of California has 11 not created a protected interest in an administrative appeal system in its prison. California Code of 12 Regulations, title 15 sections 1073 and 3084 grant prisoners in the county jails and state prisons a 13 purely procedural right: the right to have a prison appeal. The regulations simply require the 14 establishment of a procedural structure for reviewing prisoner complaints and set forth no 15 substantive standards; instead, they provide for flexible appeal time limits, see Cal. Code Regs. tit. 16 15, § 3084.8, and, at most, that “[n]o reprisal shall be taken against an inmate or parolee for filing 17 an appeal,” id. § 3084.1(d). A provision that merely provides procedural requirements, even if 18 mandatory, cannot form the basis of a constitutionally cognizable liberty interest. See Smith v. 19 Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also Antonelli, 81 F.3d at 1430 (prison grievance 20 procedure is procedural right that does not give rise to protected liberty interest requiring 21 procedural protections of Due Process Clause). Here, Plaintiff had no federal constitutional right 22 to a properly functioning appeal system. An incorrect decision on an administrative appeal or the 23 failure to process the appeal in a particular way therefore did not amount to a violation of his right 24 to due process. Thus, to the extent that Plaintiff’s due process claim concerns the handling of his 25 administrative appeal or grievance, such a claim is DISMISSED for failure to state a claim upon 26 which relief may be granted. If Plaintiff wishes to elaborate by amending his Fourteenth 27 Amendment claim, he may include it in his amended complaint, but he must link the named d. Supervisorial Liability [1] Plaintiff sues Defendants Seibel, Weaver, and Lemon in their supervisory capacity. Dkt. 1 [2] at 8. Plaintiff does not allege facts demonstrating that Defendants violated his federal rights, but [3] seems to claim Defendants are liable based on the conduct of their subordinate, Defendant Macias. [4] There is, however, no respondeat superior liability under section 1983 solely because a defendant [5] is responsible for the actions or omissions of another. See Taylor, 880 F.2d at 1045 . A supervisor [6] generally “is only liable for constitutional violations of his subordinates if the supervisor [7] participated in or directed the violations, or knew of the violations and failed to act to prevent [8] them.” Id. A supervisor may also be held liable if he or she implemented “a policy so deficient [9] that the policy itself is a repudiation of constitutional rights and is the moving force of the [10] constitutional violation.” Redman, 942 F.2d at 1446 . [11] Plaintiff has not stated a cognizable constitutional claim against Defendants Seibel, [12] Weaver, and Lemon. Therefore, the supervisor liability claim against Defendants Seibel, Weaver, [13] and Lemon is DISMISSED with leave to amend to correct the aforementioned deficiencies. [14] III. PRO SE PRISONER MEDIATION PROGRAM [15] The Northern District of California has established a Pro Se Prisoner Mediation Program. [16] Certain prisoner civil rights cases may be referred to a neutral magistrate judge for settlement [17] proceedings. The proceedings will consist of one or more conferences as determined by [18] Magistrate Judge Robert M. Illman. The conferences shall be conducted with Plaintiff as well as [19] Defendants and/or the representative for Defendants attending by videoconferencing. [20] Good cause appearing, the present case will be REFERRED to Magistrate Judge Robert [21] Illman for global settlement proceedings pursuant to the Pro Se Prisoner Mediation Program, [22] involving the instant matter and other cases filed by Plaintiff. Such proceedings shall take place [23] within 120 days of the date this Order is filed, or as soon thereafter as Magistrate Judge Illman’s [24] calendar will permit. Magistrate Judge Illman shall coordinate a place, time, and date for one or [25] more settlement conferences with all interested parties and/or their representatives and, within [26] fifteen days of the conclusion of all settlement proceedings, shall file with the Court a report [27] thereon. IV. CONCLUSION [1] For the foregoing reasons, the Court orders as follows: [2] 1. Plaintiff’s claim for injunctive relief is DISMISSED as moot. [3] 2. Plaintiff has stated a cognizable Eighth Amendment excessive force claim against [4] Defendant Macias. [5] 3. To the extent that Plaintiff’s due process claim under the Fourteenth Amendment [6] concerns the handling of his administrative appeal or grievance, such a claim is DISMISSED for [7] failure to state a claim upon which relief may be granted. If Plaintiff wishes to elaborate by [8] amending his Fourteenth Amendment claim, he may include it in his amended complaint, but he [9] must link the named Defendants to this claim. [10] 4. Plaintiff’s action is referred to the Pro Se Prisoner Mediation Program for global [11] settlement proceedings, involving the instant matter and other cases filed by Plaintiff. The Clerk [12] is directed to serve Magistrate Judge Illman with a copy of this order and to notify Magistrate [13] Judge Illman that a copy of the court file can be retrieved from the Court’s electronic filing [14] database. [15] 5. The Court DISMISSES with leave to amend the Fourteenth Amendment claim, the [16] First Amendment retaliation claim against Defendant Macias, as well as Plaintiff’s supervisor [17] liability claim against Defendants Seibel, Weaver, and Lemon. Plaintiff has also been instructed [18] to provide to the Court the names five unnamed prison officials who allegedly failed to intervene [19] during the alleged acts of excessive force. If Plaintiff chooses to file an amended complaint, he [20] must file the amended complaint within twenty-eight (28) days of the date of this Order. The [21] amended complaint must include the caption and civil case number used in this Order, Case No. C [22] 21-cv-03189-YGR (PR) and the words “AMENDED COMPLAINT” on the first page. Plaintiff [23] must use the Court’s complaint form and answer all the questions on the form in order for the [24] action to proceed. Because an amended complaint completely replaces the previous complaints, [25] Plaintiff must include in his amended complaint the names of the five unnamed prison officials [26] and all the claims he wishes to present, including any amended claims (i.e., his Fourteenth [27] Amendment claim, his First Amendment claim against Defendant Macias, or his supervisor 1 liability claim against Defendants Seibel, Weaver, and Lemon) as well as the Eighth Amendment 2 claim against Defendant Macias, which the Court has already found cognizable. See Ferdik v. 3 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the 4 prior complaint by reference. Failure to file an amended complaint in accordance with this Order 5 in the time provided will result in the following: (1) the dismissal of the Doe Defendants without 6 prejudice to Plaintiff filing new actions against them once their names are known; (2) the 7 dismissal of his Fourteenth Amendment claim, his retaliation claim against Defendant Macias, and 8 his supervisor liability claim against Defendants Seibel, Weaver, and Lemon; (3) the initial 9 complaint (Dkt. 1) remaining the operative complaint; and (4) this action proceeding in 10 accordance with this Order. 11 6. The following Defendant(s) shall be served: SVSP Officer Macias. Service on the 12 listed Defendant(s) shall proceed under the CDCR’s e-service program for civil rights cases from 13 prisoners in CDCR custody. In accordance with the program, the Clerk of the Court is directed to 14 serve on CDCR via email the following documents: the operative complaint (Dkt. 1), this Order of 15 service, a CDCR Report of E-Service Waiver form, and a summons. The Clerk also shall serve a 16 copy of this Order on the Plaintiff. 17 No later than forty (40) days after service of this order via email on CDCR, CDCR shall 18 provide the Court a completed CDCR Report of E-Service Waiver advising the Court which 19 Defendant(s) listed in this Order will be waiving service of process without the need for service by 20 the United States Marshal Service (“USMS”) and which Defendant(s) decline to waive service or 21 could not be reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver 22 to the California Attorney General’s Office which, within twenty-one (21) days, shall file with 23 the Court a waiver of service of process for Defendant(s) who are waiving service. 24 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 25 Defendant who has not waived service according to the CDCR Report of E-Service Waiver a 26 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 27 of this Order, the summons, and the operative complaint for service upon each Defendant who has 1 Service Waiver. 2 7. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 3 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. If 4 service is waived, this action will proceed as if Defendant had been served on the date that the 5 waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to 6 serve and file an answer before sixty (60) days from the date on which the CDCR provides a copy 7 of the CDCR Report of E-Service Waiver to the California Attorney General’s Office. (This 8 allows a longer time to respond than would be required if formal service of summons is 9 necessary.) If Defendant has not waived service and has instead been served by the USMS, then 10 Defendant shall serve and file an answer within twenty-one (21) days after being served with the 11 summons and complaint. 12 8. All communications by Plaintiff with the Court must be served on Defendant or 13 Defendant’s counsel, once counsel has been designated, by mailing a true copy of the document to 14 them. 15 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 16 informed of any change of address and must comply with the Court’s orders in a timely fashion. 17 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 18 while an action is pending must promptly file a notice of change of address specifying the new 19 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 20 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 21 (2) the Court fails to receive within sixty days of this return a written communication from the pro 22 se party indicating a current address. See L.R. 3-11(b). 23 10. Upon a showing of good cause, requests for a reasonable extension of time will be 24 granted provided they are filed on or before the deadline they seek to extend. 25 11. The Clerk shall include a copy of a blank complaint form with a copy of this Order 26 to Plaintiff. 27 12. In view of the referral to the Pro Se Prisoner Mediation Program, after the operative 1 alleged cognizable claim(s), all other further proceedings in this case are hereby STAYED. The 2 || Clerk shall ADMINISTRATIVELY CLOSE this case until further order of the Court. If the case 3 is not settled, the Court will enter a scheduling order for further proceedings. 4 IT IS SO ORDERED. 5 Dated: October 1, 2021 6 eae Ass (SADGE YVONNE. GONZALEZ ROGERS 7 nited States District Judge [12] © [16] = 17 Z 18