Whatley v. Valdovinos

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 REGINALD WHATLEY, Case No.: 3:18-cv-02761-CAB-BGS CDCR #AG-2464, [11] ORDER GRANTING IN PART AND Plaintiff, 12 DENYING IN PART DEFENDANT vs. VALDOVINOS’ MOTION TO DISMISS [13] PLAINTIFF’S FIRST AMENDED G. VALDOVINOS, Correctional Officer; 14 COMPLAINT PURSUANT TO Fed. R. D. PARAMO, Warden; ROMERO, Civ. P. 8; 12(b)(6) & 41(b) 15 Defendants. 16 [ECF No. 34] [17] 18 I. Procedural History 19 Plaintiff initially brought this action under 42 U.S.C. Section 1983 alleging that his 20 constitutional rights were violated when he was housed at the Richard J. Donovan 21 Correctional Facility (“RJD”) in May of 2018. See Compl., ECF No. 1. On March 1, 22 2019, this Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”), 23 dismissed Defendant Paramo and directed the United States Marshal Service (“USMS”) 24 to effect service of Plaintiff’s Complaint upon Defendant Valdovinos. ECF No. 7. 25 On June 10, 2019, Defendant Valdovinos filed a Motion to Dismiss Portions of 26 Plaintiff’s Complaint. ECF No. 12. In response, Plaintiff filed a Motion to Amend 27 Complaint which was granted by the Court. ECF Nos. 21, 25. On November 8, 2019, 28 Plaintiff filed his First Amended Complaint (“FAC”). ECF No. 32. In his FAC, Plaintiff 1 added additional claims and one additional defendant. Id. at 1 . Defendant Valdovinos 2 filed a new Motion seeking to dismiss all the claims in Plaintiff’s FAC pursuant to 3 Federal Rules of Civil Procedure 8, 12(b)(6) and 41(b). Def.’s Mot., ECF No. 34. 4 Plaintiff filed an Opposition to Defendant’s Motion to which Defendant filed a Reply. 5 ECF Nos. 36, 37. 6 While the Motion was initially calendared before Magistrate Judge Bernard G. 7 Skomal, the Court has determined that this Motion is suitable for disposition upon the 8 papers without oral argument and that no Report and Recommendation from Magistrate 9 Judge Skomal is necessary. 10 For the reasons set forth more fully below Defendant’s Motion is GRANTED in 11 part and DENIED in part. 12 II. Operative Pleading 13 As an initial matter, the Court notes that Plaintiff did not comply with the Court’s 14 October 21, 2109 Order which granted Plaintiff leave to file an FAC. See ECF No. 25. 15 In this Order, Plaintiff was instructed that his amended complaint “must be complete in 16 itself without reference to his original pleading” and any “[d]efendants not named and 17 any claims not re-alleged in the amended complaint will be considered waived.” Id. at 2 18 citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 19 F.2d 1542 , 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”. 20 However, Plaintiff’s FAC actually added new claims and a defendant which was not 21 permitted by the Court’s previous Order, as well as simply attaching his original 22 Complaint as an exhibit. Plaintiff’s FAC is therefore not “complete in itself.” However, 23 because Plaintiff is proceeding in pro se, the Court will consider the factual allegations in 24 his FAC, including the allegations alleged in his original Complaint attached as an 25 exhibit. 26 / / / 27 / / / 28 / / / 1 III. Factual allegations 2 On May 4, 2018, Plaintiff claims he engaged in a verbal dispute with Tower Officer 3 Valdovinos after Valdovinos ordered him to “lock it up.” See FAC, ECF No. 32 at 23. 4 Plaintiff objected, sat down, and “told Valdovinos to call Sgt. Mitchell.” Id. While Officer 5 Trevino2 “trashed [his] cell,” Plaintiff contends Valdovinos said, “If I was on the floor I 6 would fuck you up,” threatened to “have someone fuck [Plaintiff] up,” and exclaimed “I 7 don’t give a damn about getting sued.” Id. at 23, 25 . Plaintiff claims Valdovinos “then got 8 on the mic and said yard and dayroom will be delayed thanks to [Plaintiff] yall [sic] can 9 blame him.” Id. at 23 . 10 Later that night at “pill call,” Plaintiff “went to Sgt. Mitchell and told him what 11 Valdovinos said.” Id. Plaintiff contends Sgt. Mitchell3 called Valdovinos and “by the time 12 [he] got back to the building,” Valdovinos was “mad” that Plaintiff “told the Sergeant on 13 [him],” called him a “soft weak bitch,” and “got on the mic [sic] and said ‘I’m going to put 14 you on blast you tell squad who got the dope and cell phones and if 206 cell get hit it was 15 [Plaintiff] who told.’” Id. 16 Plaintiff claims Valdovinos “wrote a false report” (“RVR”) regarding the May 4, 17 2018 incident, charging him with willfully delaying a peace officer in the performance of 18 duty. Id. at 34 . He further claims Valdovinos filed two additional “false” RVRs against him 19 both charging him with behavior which could lead to violence. Id. at 24 . 20 A week after the May 4, 2018 incident, Plaintiff claims he was walking through the 21 sally port, when he heard someone say, “You snitch” before he was hit in the jaw and neck. [22] Id. at 23 . Plaintiff contends he “blocked [the] punch,” but “can’t even say who the guy is” 23 lest he be “called a snitch.” Id. at 24 . [25] 1 Page numbers for all documents filed in the Court’s Case Management/Electronic Case File 26 (“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the top right-hand corner of each chronologically-numbered docket entry. 27 2 Plaintiff does not name Trevino as a Defendant. [28] 1 Plaintiff claims Valdovinos and Romero “work together” on “B-yard” at RJD. Id. 2 at 3. Plaintiff alleges Romero “open[ed] Plaintiff’s legal mail from this Court” and “yelled 3 up” to Valdovinos “Hey Valdovinos, Whatley is suing you, he [is] trying to take your boat.” [4] Id. 5 On February 10, 2019, Plaintiff claims Valdovinos “told Lt. Rodriguez Plaintiff 6 threaten to kill [Valdovinos].” Id. at 5 . Valdovinos “wrote in his report that Plaintiff 7 approached the sally port and while standing at the threshold,” Plaintiff turned his body 8 towards Valdovinos, pointed his finger and said “stop following me, I’m going to kill you” 9 while making a “horizontal slicing motion” to his throat. Id. Plaintiff was placed in the 10 “hole” from February 10, 2019 to April 4, 2019. Id. 11 IV. Defendant’s Motion to Dismiss per Fed.R.Civ.P. 41(b) 12 A. Standard of Review 13 Under Federal Rule of Civil Procedure 41(b), a defendant “may move to dismiss the 14 action or claim” against them “[i]f the plaintiff fails to prosecute or to comply with these 15 rules or a court order.” A dismissal under this rule also “operates as an adjudication on the 16 merits” unless the “dismissal order says otherwise.” Fed. R. Civ. P. 41(b). Dismissal under 17 Rule 41(b) “is so harsh a penalty it should be imposed as a sanction only in extreme 18 circumstances.” Lal v. California, 610 F.3d 518, 525 (9th Cir. 2010) (quoting Dahl v. City 19 of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996)). 20 B. Application to Plaintiff’s FAC 21 Defendant moves to dismiss Plaintiff’s entire action pursuant to Rule 41(b) on the 22 grounds that Plaintiff has repeatedly failed to “comply with this Court’s Orders and the 23 Local Rules.” Def.’s Mot. at 5-6. Defendant argues that Plaintiff’s FAC is not “complete 24 in itself without reference to his original pleading.” Id. at 5. As noted above, Plaintiff’s 25 FAC is disjointed and adds a new defendant for which he did not seek leave of court to 26 add. Moreover, it is not complete in itself and he instead merely attaches his original 27 Complaint as an exhibit. Plaintiff’s FAC is not in compliance with the instructions 28 previously provided by the Court. 1 In response, Plaintiff argues in his Opposition that he has not “vacated his original 2 Complaint” and he is “only adding retaliation and another false report on G. Valdovinos.” 3 Pl.’s Opp’n at 1. On September 23, 2019, Plaintiff filed a motion seeking leave to file an 4 amended complaint. See ECF No. 21. On October 21, 2019, Plaintiff’s request was 5 granted and he was specifically informed that his “amended complaint must be complete 6 in itself without reference to his original pleading.” Oct. 21, 2019 Order, ECF No. 25 at 2 7 (emphasis added). 8 However, while it is clear that Plaintiff has had difficulty complying with the 9 Court’s Order, for the reasons set forth below, the Court finds dismissal of Plaintiff’s 10 FAC appropriate on the grounds he failed to comply with Fed.R.Civ.P. 8 and he has 11 failed to state some claims pursuant to Fed. R. Civ. P. 12(b)(6) and will not dismiss 12 pursuant to Rule 41(b) at this time. Plaintiff is cautioned that while the Court will permit 13 Plaintiff leave to file an amended pleading, if he continues to fail to comply with the 14 Court’s Orders, including adding new claims or defendants without first seeking leave of 15 Court, the Court may dismiss the entire action pursuant to Rule 41(b). 16 V. Defendant’s Motion to Dismiss per Fed.R.Civ.P. 12(b)(b) 17 A. Standard of Review 18 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to 19 dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be 20 granted.” A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the 21 legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan 22 v. City of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 23 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the 24 claim’s substantive merits, “a court may [ordinarily] look only at the face of the 25 complaint to decide a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 26 F.3d 977, 980 (9th Cir. 2002). 27 “To survive a motion to dismiss, a complaint must contain sufficient factual 28 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 1 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 570 (2007)); Villa v. Maricopa Cty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A 3 claim is facially plausible “when the plaintiff pleads factual content that allows the court 4 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Iqbal, 556 U.S. at 678 . Plausibility requires pleading facts, as opposed to conclusory 6 allegations or the “formulaic recitation of the elements of a cause of action,” Twombly, 7 550 U.S. at 555, which rise above the mere conceivability or possibility of unlawful 8 conduct. Iqbal, 556 U.S. at 678-79 ; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 9 2013). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 . While a pleading “does 11 not require ‘detailed factual allegations,’” Rule 8 nevertheless “demands more than an 12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 13 (quoting Twombly, 550 U.S. at 555). 14 B. Rule 8 15 Defendant moves to dismiss Plaintiff’s entire action on the ground that Plaintiff’s 16 FAC fails to comply with Rule 8. See Def.’s Mot. at 6-7. Rule 8 of the Federal Rules of 17 Civil Procedure provides that in order to state a claim for relief in a pleading it must 18 contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a 19 short and plain statement of the claim showing that the pleader is entitled to relief.” 20 Fed.R.Civ.P. 8(a)(1) & (2). 21 Here, the Court agrees that Plaintiff’s FAC does not comply with Rule 8. Plaintiff’ 22 FAC submits a few factual allegations against Valdovinos but mostly contains disjointed 23 statements and legal argument. He further asks that the Court “conduct a meaningful 24 comparison” of his FAC and his original Complaint. As the Court has repeatedly 25 informed Plaintiff, his operative pleading must be complete in itself. See McHenry v. 26 Renne, 84 F.3d 1172 , 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of 27 complaint that was “argumentative, prolix, replete with redundancy, and largely 28 irrelevant”); Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637 1 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 dismissals where 2 pleadings were “verbose,” “confusing,” “distracting, ambiguous, and unintelligible,” 3 “highly repetitious,” and comprised of “incomprehensible rambling,” while noting that 4 “[o]ur district courts are busy enough without having to penetrate a tome approaching the 5 magnitude of War and Peace to discern a plaintiff’s claims and allegations.”). 6 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s entire 7 FAC for failing to comply with Rule 8. 8 C. Verbal Harassment claims 9 Plaintiff claims that he has added an “harassment” claim against Valdovinos. Pl.’s 10 Mot. at 2. Defendant moves to dismiss this claim against him on the ground that this claim 11 fails to state a claim. Def.’s Mot. at 8-9. 12 An inmate “being subjected to abusive language ... [v]erbal harassment or abuse ... 13 is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983 .” Freeman v. 14 Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (citing Oltarzewski v. Ruggiero, 830 F.2d 136 , 15 139 (9th Cir. 1987) (quotations omitted), overruled in part on other grounds by Shakur v. 16 Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008)); Keenan v. Hall, 83 F.3d 1083, 1092 (9th 17 Cir. 1996), amended on denial of rehr’g, 135 F.3d 1318 (9th Cir. 1998) (holding verbal 18 harassment, standing alone, does not violate the Eighth Amendment); Austin v. Terhune, [19] 367 F.3d 1167, 1171 (9th Cir. 2004) (Eighth Amendment protections “do not necessarily 20 extend to mere verbal sexual harassment.”); Minifield v. Butikofer, 298 F. Supp. 2d 900 , 21 903-04 (N.D. Cal. 2004). Such conduct, while unprofessional, and impertinent, does 22 constitute the “unnecessary and wanton infliction of pain” required to sustain an Eighth 23 Amendment violation. See, e.g., Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997) 24 (affirming summary adjudication in favor of the prison officials where “the only arguably 25 sexually harassing conduct... was verbal”). 26 Thus, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s verbal 27 harassment claims pursuant to Fed.R.Civ.P. 12(b)(6) with prejudice and without leave to 28 amend. 1 D. Rules Violation Report False Report claims 2 Defendant moves to dismiss Plaintiff’s claims that Valdovinos violated his 3 constitutional rights when Valdovinos allegedly filed a false rules violation report 4 (“RVR”) against him in May and November 2018. Def.’s Mot. at 8. Plaintiff also 5 alleges in his FAC that Valdovinos wrote “lies” his report following an incident on 6 February 10, 2019 and as a result Plaintiff was held in the “hole” from February 10, 2019 7 to April 4, 2019. FAC at 6. 8 “The issuance of a false RVR, alone, does not state a claim under section 1983.” 9 Murschel v. Paramo, 2018 WL 539159 , at *5 (S.D. Cal. 2018) (citing Dawson v. Beard, [10] 2016 WL 1137029 , at *5-6 (E.D. Cal. 2016)). Instead, claims of arbitrary action by 11 prison officials must grounded in “‘the procedural due process requirements as set forth 12 in Wolff v. McDonnell[, 418 U.S. 539 (1974)].’” Murschel, 2018 WL 539159 , at *5 13 (citing Ellis v. Foulk, 2014 WL 4676530 , at *2 (E.D. Cal. 2014) (quoting Hanrahan v. 14 Lane, 747 F.2d 1137, 1140 (7th Cir. 1984))). “[T]here is no due process right to be free 15 from false disciplinary charges,” Solomon v. Meyer, 2014 WL 294576 , at *2 (N.D. Cal. 16 2014), because “[t]he Constitution demands due process, not error-free decision-making.” 17 Chavira v. Rankin, 2012 WL 5914913 , at *1 (N.D. Cal. 2012); see also Johnson v. 18 Felker, 2013 WL 6243280 , at *6 (E.D. Cal. 2013) (“Prisoners have no constitutionally 19 guaranteed right to be free from false accusations of misconduct, so the mere falsification 20 of a [rules violation] report does not give rise to a claim under section 1983.”) (citing 21 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 22 949, 951-53 (2d Cir. 1986)). 23 A prisoner is entitled to certain due process protections when he is charged with a 24 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 25 Wolff, 418 U.S. at 564-571 . “Such protections include the rights to call witnesses, to 26 present documentary evidence and to have a written statement by the fact-finder as to the 27 evidence relied upon and the reasons for the disciplinary action taken.” Id.; see also 28 Wolff, 418 U.S. at 566 (explaining that an inmate must be afforded an opportunity “to call 1 witnesses and present documentary evidence in his or her defense when permitting him to 2 do so will not be unduly hazardous to institutional safety or correctional goals.”). 3 Plaintiff’s FAC is devoid of any factual allegations to support a Fourteenth Amendment 4 due process claim. 5 Thus, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Fourteenth 6 Amendment due process claims arising from the allegations of filing of false reports. 7 E. Injunctive relief claims 8 Defendant moves to dismiss Plaintiff’s claims for injunctive relief as moot in light 9 of the fact that Plaintiff is no longer housed at RJD. Although Plaintiff did not file a notice 10 of change of address, he is currently housed at the California Substance Abuse Treatment 11 Facility (“CSATF “) located in Corcoran, California.4 12 An inmate’s release or transfer from one institution to another while his claims are 13 pending generally moots any claims for equitable relief which relate to the transferring 14 prison’s policies unless the suit has been certified as a class action. Preiser v. Newkirk, [15] 422 U.S. 395, 402-03 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). 16 Thus, because Plaintiff is currently housed at CSATF, the incidents giving rise to 17 his claims occurred at RJD, and disputes as to the rights or obligations of the parties with 18 respect to activities that occurred at RJD are not alleged to have been continued at 19 CSATF, Plaintiff’s claim for injunctive relief is moot. Defendant’s Motion to Dismiss 20 Plaintiff’s claims for injunctive relief is GRANTED. 21 F. Official Capacity claims 22 Finally, Defendant seeks dismissal of Plaintiff’s FAC to the extent he seeks money 23 damages against him based on actions taken in his “official” capacity. See Def.’s Mot. at 24 9-10. While the Eleventh Amendment bars a prisoner’s section 1983 claims against state 25 actors sued in their official capacities, Will v. Michigan, 491 U.S. 58, 66 (1989), it does [28] 1 not bar damage actions against state officials sued in their personal or individual 2 capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. Gardner, 976 F.2d 469 , 4723 73 (9th Cir. 1992). When a state actor is alleged to have violated both federal and state 4 law and is sued for damages under section 1983 in his individual or personal capacity, 5 there is no Eleventh Amendment bar, even if state law provides for indemnification. 6 Ashker v. California Dep’t of Corrections, 112 F.3d 392 , 395 (9th Cir. 1997). 7 The Supreme Court has made it clear that a plaintiff can establish personal liability 8 in a section 1983 action simply by showing that each official acted under color of state 9 law in deprivation of a federal right. Hafer, 502 U.S. at 25 . Thus, the Court GRANTS 10 Defendant’s Motion to Dismiss on Eleventh Amendment grounds only to the extent that 11 Plaintiff seeks damages against him in his official capacity. 12 G. Leave to Amend 13 The Court will grant Plaintiff leave to file a Second Amended Complaint. 14 However, if Plaintiff does not comply with the Court’s Orders, his amended pleading 15 may be subject to dismissal pursuant to Fed.R.Civ.P. 41(b). The amended pleading must 16 be “complete in itself without reference to his original pleading” and any “[d]efendants 17 not named and any claims not re-alleged in the amended complaint will be considered 18 waived.” S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.,, 896 F.2d at 1546. 19 While the Court will permit Plaintiff to file an amended pleading, he may not re20 allege his verbal harassment claims as the Court finds that amendment of these claims is 21 futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 22 (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”) 23 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)) 24 In addition, Plaintiff may not attach his original Complaint or his FAC as an 25 exhibit to his amended pleading. Plaintiff must provide one pleading that contains factual 26 allegations against specific defendants. Plaintiff may add documents as exhibits that he 27 believes supports his constitutional claims. However, Plaintiff may not add any new 28 claims or defendants not previously raised in either his original Complaint or his FAC. 1 || VI. Conclusion and Order 2 For all the reasons discussed, the Court: 3 1) GRANTS Defendant Valdovino’s Motion to Dismiss Plaintiff's FAC 4 pursuant to Fed.R.Civ.P. 8; 5 2) DENIES Defendant Valdovino’s Motion to Dismiss Plaintiff's FAC 6 || pursuant to Fed.R.Civ.P. 41(b); 7 3) GRANTS Defendant Valdovino’s Motion to Dismiss Plaintiff's verbal 8 ||harassment claims without leave to amend; 9 4) GRANTS Defendant Valdovino’s Motion to Dismiss Plaintiff's Fourteenth 10 || Amendment false report claims; 11 5) GRANTS Defendant Valdovino’s Motion to Dismiss Plaintiffs claims 12 || against him in his official capacity; 13 6) GRANTS Defendant Valdovino’s Motion to Dismiss Plaintiff's injunctive 14 || relief claims; 15 7) GRANTS Plaintiff forty five (45) days leave from the date of this Order in 16 || which to file a Second Amended Complaint which cures all the deficiencies of pleading 17 ||noted. Plaintiff's Amended Complaint must be complete by itself without reference to his 18 original pleading. 19 8) The Clerk of Court is directed to mail Plaintiff a court approved civil rights 20 || complaint for his use in amending. 21 IS SO ORDERED. 22 ||Dated: February 11, 2020 € [23] Hon. Cathy Ann Bencivengo 24 United States District Judge [28] Il oo