-DLB (PC) Bryant v. Knight et al, No. 1:2009cv01367 - Document 28 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 14 Defendants' Motion to Dismiss be DENIED; 15 Defendants' Motion to Declare Plaintiff a Vexatious Litigant be DENIED; and Defendants be Ordered to File an Answer to 1 Plaintiff's Co mplaint Within Fourteen (14) Days if the District Judge Adopts these Findings and Recommendations, signed by Magistrate Judge Dennis L. Beck on 3/4/2011. Motions referred to Judge Wanger. Objections to F&R due within fourteen (14) days. (Jessen, A)
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-DLB (PC) Bryant v. Knight et al Doc. 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JAMES E. BRYANT, 9 10 CASE NO. 1:09-CV-01367-OWW-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE DENIED (DOC. 14) v. 11 J. KNIGHT, et al., 12 FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS’ MOTION TO DECLARE PLAINTIFF VEXATIOUS LITIGANT BE DENIED (DOC. 15) Defendants. 13 14 / OBJECTIONS DUE WITHIN 14 DAYS 15 16 Findings And Recommendation 17 I. Background 18 Plaintiff James E. Bryant (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 21 on Plaintiff’s complaint, filed August 5, 2009, against Defendants J. Knight and Davis for 22 retaliation in violation of the First Amendment and violation of the Eighth Amendment. Doc. 1. 23 Pending before the Court is Defendants’ motion to dismiss for failure to state a claim, 24 filed March 5, 2010. Doc. 14. Plaintiff filed his opposition on March 15, 2010. Doc. 17. 25 Defendants filed their reply on March 22, 2010. Doc. 18. 26 Also pending before the Court is Defendants’ motion to declare Plaintiff a vexatious 27 litigant, filed March 5, 2010. Doc. 15. Defendants also filed a Request For Judicial Notice on 28 March 5, 2010, and a Supplemental Request For Judicial Notice on April 26, 2010. Docs. 16, 1 Dockets.Justia.com 1 21. After the Court ordered Plaintiff to file an opposition, Plaintiff filed on January 31, 2011. 2 Defendants filed a reply on February 4, 2011. The matter is submitted pursuant to Local Rule 3 230(l). 4 II. Motion To Dismiss 5 A. 6 Defendants contend that Plaintiff intentionally lied to the Court, and thus should be Rule 11 Sanction 7 sanctioned with dismissal of his action pursuant to Federal Rule of Civil Procedure 11. Defs.’ P. 8 &. A. Support Mot. Dismiss 2:3-8:14. 9 Federal courts have the inherent authority to sanction conduct abusive of the judicial 10 process. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991). However, “[b]ecause of their 11 very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 12 U.S. at 44. The extreme sanction of “dismissal is warranted where . . . a party has engaged 13 deliberately in deceptive practices that undermine the integrity of judicial proceedings.” 14 Anheuser-Busch, Inc. v. Natural Beverages Distributors, 69 F.3d 337, 348 (9th Cir. 1995) 15 (citation omitted); see Leon v. IDX Systems, Corp., 464 F.3d 951, 958 (9th Cir. 2006). For 16 dismissal to be proper, the sanctionable conduct must have been due to willfulness, fault, or bad 17 faith. Leon, 464 F.3d at 958; Anheuser-Busch, Inc., 69 F.3d at 348. Further, the Court must 18 consider less drastic sanctions. Leon, 464 F.3d at 358. 19 Courts may impose sanctions on pro se litigants proceeding in forma pauperis. Warren v. 20 Guelker, 29 F.3d 1386, 1389-90 (9th Cir. 1994) (per curiam). Before imposing sanctions 21 pursuant to a party’s motion, the Court must follow the procedures outlined in Federal Rule of 22 Civil Procedure 11(c)(2). See Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 788-89 (9th Cir. 23 2001) (citing former Fed. R. Civ. P. 11(c)(1)(A), now Fed. R. Civ. P. 11(c)(2)); Barber v. Miller, 24 146 F.3d 707, 710-11 (9th Cir. 1998). 25 Defendants contend that on the complaint form, Plaintiff answered the question, “Have 26 you filed any other lawsuits while you were a prisoner?” by responding with “No,” under the 27 penalty of perjury. Defs.’ P. &. A. Support Mot. Dismiss 2:3-8:14. Defendants contend that 28 Plaintiff has filed numerous lawsuits while he was a prisoner. Id. 2 1 Plaintiff does not dispute that he previously filed lawsuits as a prisoner.1 Plaintiff 2 contends that he answered truthfully pursuant to Local Rule 81-190 (now Local Rule 190). Pl.’s 3 Opp’n 1-2. Plaintiff contends that pursuant to Local Rule 190(e)(1) and (2), Plaintiff was 4 required to disclose only those cases when “petitioner has previously sought relief arising out of 5 the same matter from this court or any other federal court, together with the rulings and reasons 6 given for denial of relief.” L.R. 190(e)(2). 7 Plaintiff’s argument is clearly erroneous and possibly disingenuous. Plaintiff cites to a 8 Local Rule which pertains only to habeas corpus petitions pursuant to 28 U.S.C. §§ 2254 and 9 2255. It is unclear whether Plaintiff intended to lie to the Court, as Plaintiff’s citation to an 10 inapplicable local rule is not necessarily demonstrative of such intent. However, Defendants’ 11 motion for sanction pursuant to Rule 11(c) should be denied on other grounds. 12 Pursuant to Rule 11(c)(2), a motion for sanctions must “not be filed or be presented to the 13 court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately 14 corrected within 21 days after service or within another time the court sets.” This is known as 15 the “safe harbor” requirement, and is mandatory for a motion for sanctions pursuant to Rule 16 11(c)(2). Radcliffe, 254 F.3d at 789. There is no evidence that Defendants complied with the 17 safe harbor requirement prior to moving for the sanction of dismissal. Accordingly, Defendants’ 18 motion for sanction pursuant to Rule 11(c)(2) should be denied. 19 B. 20 21 Rule 12(b)(6) 1. Failure To State a Claim Legal Standard “The focus of any Rule 12(b)(6) dismissal . . . is the complaint.” Schneider v. California 22 Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for 23 failure to state a claim, the court must accept as true the allegations of the complaint in question, 24 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in 25 the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's 26 favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice 27 1 28 The Court grants Defendants’ request for judicial notice of Plaintiff’s many cases filed while he was a prisoner. Docs. 16, 21. 3 1 pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). 2 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 3 showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). Detailed factual 4 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 6 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 7 forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 8 Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 9 conclusions are not. Id. 10 11 2. Plaintiff’s Complaint Plaintiff alleges the following. On November 24, 2007, Plaintiff and another inmate were 12 conversing. Defendant Davis, who was in the control tower, ordered Plaintiff to enter the chow 13 hall for the evening meal. Plaintiff contends that it is not mandatory unless an inmate wants to 14 participate in the meal. Plaintiff refused to enter the chow hall. Defendant Davis then ran across 15 the yard and caught Plaintiff in the area near Building Four. Defendant Davis then slammed 16 Plaintiff up against the wall face first, stating that if Plaintiff was ordered to stop, he should stop. 17 Plaintiff was then handcuffed and escorted to the program office. Defendant Davis then roughly 18 threw him into the holding cage for about an hour, then returned and sent Plaintiff back to his 19 building and cell. 20 On December 20, 2007, Defendant J. Knight had the yard control booth officer order the 21 Plaintiff to go from the back of the medication line to the front. The weather was very cold, and 22 the other inmates would not appreciate Plaintiff skipping ahead of them. Defendant Knight then 23 told Plaintiff that he could either go to the front of the line as ordered, go back to the unit without 24 breakfast, or go to the holding cage. Plaintiff chose the holding cage. Plaintiff headed to the 25 program office and informed Lieutenant Baires that Defendant Knight had ordered Plaintiff to 26 report to the cage. Defendant Knight then arrived, asked what Plaintiff was doing, and then 27 shoved him against the wall and ordered Plaintiff to turn around. Plaintiff complied. Defendant 28 Knight then, without any provocation, placed Plaintiff in a hammer headlock and began choking 4 1 him sadistically and maliciously. Defendant Knight lifted him off the ground and placed him in 2 the holding cage. Plaintiff subsequently filed inmate grievances against both Defendants. 3 On December 2008, Defendant Davis, Plaintiff’s work supervisor, refused to allow 4 Plaintiff to come to work in retaliation for Plaintiff filing a complaint against him. On January 5 24, 2009, Defendants Knight and Davis put another inmate up to viciously assault Plaintiff in 6 retaliation for Plaintiff filing inmate grievances against them. 7 3. 8 9 Analysis a. Retaliation Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 10 petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th 11 Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 12 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 13 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 14 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 15 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 16 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 56717 68 (9th Cir. 2005). 18 19 b. Eighth Amendment For excessive force claims, “[w]hat is necessary to show sufficient harm for purposes of 20 the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim 21 at issue . . . .” Hudson v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an 22 Eighth Amendment claim is . . . contextual and responsive to contemporary standards of 23 decency.” Id. (internal quotation marks and citations omitted). The malicious and sadistic use of 24 force to cause harm always violates contemporary standards of decency, regardless of whether or 25 not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 26 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de 27 minimis injuries)). However, not “every malevolent touch by a prison guard gives rise to a 28 federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel 5 1 and unusual punishments necessarily excludes from constitutional recognition de minimis uses of 2 physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of 3 mankind.” Id. at 9-10 (internal quotations marks and citations omitted). 4 For deliberate indifference claims, to constitute cruel and unusual punishment in violation 5 of the Eighth Amendment, prison conditions must involve “the wanton and unnecessary 6 infliction of pain . . . .” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison 7 conditions may be restrictive and harsh, prison officials must provide prisoners with food, 8 clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 9 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Prison 10 officials have a duty to take reasonable steps to protect inmates from physical abuse. Hoptowit, 11 682 F.2d at 1250; see Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish a violation of 12 this duty, the prisoner must establish that prison officials were deliberately indifferent to a 13 substantial risk of serious harm to the inmates’s safety. Farmer, 511 U.S. at 834. The deliberate 14 indifference standard involves an objective and a subjective prong. First, the alleged deprivation 15 must be, in objective terms, “sufficiently serious . . . .” Id. at 834 (citing Wilson v. Seiter, 501 16 U.S. 294, 298 (1991)). Second, the prison official must “know[] of and disregard[] an excessive 17 risk to inmate health or safety.” Id. at 837. 18 19 c. Arguments Based on Plaintiff’s allegations, Plaintiff has alleged sufficient facts to state a cognizable 20 claim for relief for retaliation in violation of the First Amendment and violation of the Eighth 21 Amendment. Plaintiff alleges that Defendant Davis slammed Plaintiff face-first against the wall 22 without provocation. Pl.’s Compl. 2-3. Plaintiff alleges that Defendant Knight choked Plaintiff 23 without provocation. Id. at 3-4. Plaintiff alleges that Defendant Davis refused to permit Plaintiff 24 to work in retaliation for Plaintiff filing a complaint against him.2 Id. at 6. Plaintiff alleges that 25 26 27 28 2 Defendants contend that prisoners have no constitutional right to work. Defs.’ Mem. P. & A. Support Mot. Dismiss 10:24-11:6. This is correct. Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004). However, prisoners have a right to not be retaliated against for exercising their First Amendment rights. The adverse action taken need not be constitutionally violative itself. See, e.g., Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (holding that while prisoners have no constitutional right to avoid prison transfers, prison transfers can be retaliatory). 6 1 Defendants Davis and Knight put up another inmate to assault Plaintiff because Plaintiff filed 2 inmate grievances against them. Id. at 5. These are sufficient allegations for First Amendment 3 and Eighth Amendment claims. 4 Defendants contend that Plaintiff relies on exhibits which contradict Plaintiff's pleadings. 5 Defs.' Mem. P. & A. Support Mot. Dismiss 9:13-11:6. Even assuming that these exhibits are 6 contradictory if accepted in full, Plaintiff cites to these exhibits to demonstrate that the events 7 alleged in his complaint occurred. Plaintiff does not appear to be conceding that the exhibits are 8 true in their entirety. Defendants’ argument is unavailing. 9 Defendants next contend that they are entitled qualified immunity. Government officials 10 enjoy qualified immunity from civil damages unless their conduct violates “clearly established 11 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. 12 Fitzgerald, 457 U.S. 800, 818 (1982). In ruling upon the issue of qualified immunity, one 13 inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts 14 alleged show the defendant’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 15 194, 201 (2001), overruled in part by Pearson v. Callahan, 129 S. Ct. 808, 813 (2009) (“Saucier 16 procedure should not be regarded as an inflexible requirement”). The other inquiry is whether 17 the right was clearly established. Saucier, 533 U.S. at 201. The inquiry “must be undertaken in 18 light of the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he right 19 the official is alleged to have violated must have been ‘clearly established’ in a more 20 particularized, and hence more relevant, sense: The contours of the right must be sufficiently 21 clear that a reasonable official would understand that what he is doing violates that right.” Id. at 22 202 (citation omitted). In resolving these issues, the court must view the evidence in the light 23 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. Martinez 24 v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified immunity protects “all but the 25 plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 26 341 (1986). 27 Defendants’ alleged conduct states a claim for violations of the First and Eighth 28 Amendments. These rights are clearly established. See Farmer, 511 U.S. at 834 (Eighth 7 1 Amendment right to personal safety); Hudson, 503 U.S. at 8 (Eighth Amendment right to be free 2 from excessive force); Rhodes, 408 F.3d at 567 (First Amendment right to petition government 3 through prison grievance procedures). Accordingly, Defendants’ motion for qualified immunity 4 should be denied. 5 III. Motion To Declare Plaintiff Vexatious Litigant 6 A. 7 A District Court is empowered to enjoin litigants who have abusive histories of litigation Legal Standard 8 or who file frivolous lawsuits from continuing to do so. See 28 U.S.C. § 1651(a). Section 1651 9 states that “[t]he Supreme Court and all courts established by Act of Congress may issue writs 10 necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and 11 principles of law.” 28 U.S.C. § 1651(a). “‘A District Court not only may, but should, protect its 12 ability to carry out its constitutional functions against the threat of onerous, multiplicitous, and 13 baseless litigation.’” Safir v. United States Lines, Inc.,729 F.2d 19, 24 (2d Cir. 1986) (quoting 14 Abdullah v. Gatton, 773 F.2d 487, 488 (2d Cir. 1985)). Federal courts possess the inherent 15 power “to regulate the activities of abusive litigants by imposing carefully tailored restrictions 16 under the appropriate circumstances.” Delong v. Hennesey, 912 F.2d 1144, 1147 (9th Cir. 17 1990). “Frivolous claims by a litigious plaintiff may be extremely costly to defendants and can 18 waste valuable court time.” DeNardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir. 1986). 19 Enjoining litigants from filing new actions under 28 U.S.C. § 1651(a) is one such restriction that 20 the District Court may take. DeLong, 912 F.2d at 1147. 21 The Court may issue an order declaring a litigant to be a vexatious litigant and require a 22 litigant to seek permission from the Court prior to filing any future suits. Weissman v. Quail 23 Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999); see DeLong, 912 F.2d at 1146-47. Federal 24 courts have been cautious in declaring plaintiffs vexatious litigants. To issue such an order, 25 Ninth Circuit case law requires that the District Court ensure that: (1) the Plaintiff is given 26 adequate notice to oppose a restrictive pre-filing order; (2) the record of the case filings reflects 27 “in some manner, that the litigant’s activities were numerous and abusive;” (3) there are 28 substantive findings as to the frivolousness or harassing nature of plaintiff’s filings; and (4) the 8 1 order is narrowly tailored to remedy only the plaintiff’s particular abuses. O’Loughlin v. Doe, 2 920 F.2d 614, 617 (9th Cir. 1990); DeLong, 912 F.2d at 1147-49. “An order limiting a prisoner’s 3 access to the courts must be designed to preserve his right to adequate, effective and meaningful 4 access [to the courts] . . . while preserving the court from abuse.” Franklin v. Murphy, 745 F.2d 5 1221, 1231-32 (9th Cir. 1984). A pre-filing order cannot issue merely upon a showing of 6 litigiousness. Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). A review of the 7 plaintiff’s claims must establish that they were both numerous and without merit. Id. 8 Here, the Court declines to declare Plaintiff a vexatious litigant. Unlike the requirements 9 for state law, Ninth Circuit case law requires that a district court find, inter alia, that Plaintiff 10 have a history of frivolous or harassing filings and that the Plaintiff’s activities were numerous 11 and abusive. O’Louglin, 920 F.2d at 617. While Plaintiff has filed previous lawsuits, this 12 appears to be the first action filed against these particular Defendants.3 13 Additionally, the Court by Local Rule adopts Title 3A, part 2, of the California Code of 14 Civil Procedure for purposes of imposing security. See L. R. 151(b). Pursuant to California 15 Code of Civil Procedure 391.1, which is part of Title 3A, part 2, a motion brought to declare a 16 plaintiff a vexatious litigant requires that the moving party show that the plaintiff is a vexatious 17 litigant and “there is no reasonable probability that he will prevail in the litigation against the 18 moving defendant.” As stated above, the Court finds that Plaintiff has stated a claim. Thus, 19 there is a reasonable probability that Plaintiff can prevail in the litigation. Accordingly, the Court 20 recommends that Defendants’ motion to declare Plaintiff a vexatious litigant in this action should 21 be denied. 22 As Defendants have yet to file an answer, the Court will recommend an answer be filed 23 after the resolution of these Findings and Recommendations. 24 /// 25 /// 26 /// 27 3 28 The Court notes that Plaintiff was sanctioned in a lawsuit filed in state court against J. Nesmith for bad conduct during discovery. See Defs.’ Request For Judicial Notice 2-3, Doc. 16-1. 9 1 IV. Conclusion And Recommendation 2 Based on the foregoing, it is HEREBY RECOMMENDED that: 3 1. Defendants’ motion to dismiss, filed March 5, 2010, should be DENIED; 4 2. Defendants’ motion to declare Plaintiff a vexatious litigant, filed March 5, 2010, 5 should be DENIED; and 6 3. 7 Defendants are to file an answer to Plaintiff’s complaint within fourteen (14) days if the District Judge adopts these Findings and Recommendations. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 10 (14) days after being served with these Findings and Recommendations, the parties may file 11 written objections with the Court. The document should be captioned “Objections to Magistrate 12 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 14 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 Dated: 3b142a March 4, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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