(PC) Johnson v. Harrington et al, No. 1:2009cv00277 - Document 11 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, With Prejudice, For Failure to State a Claim 10 , signed by Magistrate Judge Sandra M. Snyder on 1/26/11: Objections to F&R due by 2/28/2011. (Hellings, J)
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(PC) Johnson v. Harrington et al Doc. 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHAWN PIERRE JOHNSON, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-00277-LJO-SMS PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM v. K. HARRINGTON, et al., (Doc. 10) 13 Defendants. THIRTY-DAY OBJECTION PERIOD 14 / 15 Findings and Recommendations Following Screening of Second Amended Complaint 16 I. Screening Requirement 17 Plaintiff Shawn Pierre Johnson, a state prisoner proceeding pro se and in forma pauperis, 18 filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 12, 2009. Pending before the 19 Court is Plaintiff’s second amended complaint, filed April 2, 2010.1 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 25 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 26 /// 27 28 1 Plaintiff amended his complaint twice, but this is the first screening review by the Court. 1 Dockets.Justia.com 1 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 2 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice,” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to indulge 8 unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal 9 quotation marks and citation omitted). While factual allegations are accepted as true, legal 10 conclusions are not. Iqbal, 129 S.Ct. at 1949. 11 Under section 1983, Plaintiff must demonstrate that each defendant personally participated 12 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires 13 the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. 14 at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 15 of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 16 572 F.3d at 969. 17 II. Plaintiff’s Claims Summary of Facts2 18 A. 19 Plaintiff, an inmate at Kern Valley State Prison, alleges that Lieutenant M. R. Phillips, 20 Warden Mike Knowles, Captain R. Fisher, Jr., and Chief Deputy Warden C. J. Chrones violated his 21 rights under the First Amendment and the Eighth Amendment of the United States Constitution. 22 Plaintiff also alleges conspiracy claims under section 1983 and 42 U.S.C. §§ 1985(3) and 1986. 23 On July 14, 2006, Plaintiff’s hand was shut in his cell door by Correctional Officer B. Clark. 24 (Doc. 12, 2nd Amend. Comp., court record p. 4 ¶3.) Plaintiff filed an inmate appeal grieving the 25 incident. (Id., ¶4.) The appeal was denied at the second level of review on October 4, 2006, by 26 Defendant Knowles. (Id., ¶5; Exhibits, pp.38-39.) The response stated that Plaintiff told Defendant 27 28 2 In summarizing the facts, the Court relies on Plaintiff’s exhibits in addition to his allegations. 2 1 Phillips during an interview that he had been kicking his cell door because he was mad about 2 receiving a CDC 115 (rules violation) earlier in the day for masturbation. (Id.) Plaintiff alleges that 3 he was never interviewed by Defendant Phillips, and that the information regarding the sexual 4 misconduct was false and endangered his safety with the inmate population. 5 Officer Clark subsequently viewed the appeal response and stated that the incident as 6 described by Defendant Phillips never occurred. Officer Clark contacted Defendant Phillips and 7 Cranmer, a correctional counselor, and informed them of the error. Cranmer spoke with B. 8 Gricewich, an appeals coordinator, about the error, but they declined to correct the error, informing 9 Plaintiff that the appeal was a legal document. 10 Plaintiff filed another appeal grieving Defendant Phillips’ false statement. (Id., Exs., pp. 30- 11 32.) On February 2, 2007, Defendant Chrones addressed that appeal at the second level of review 12 and denied Plaintiff’s request to have the information removed from his record.3 (Id., Exs., pp. 33- 13 34.) The response acknowledged that an administrative error occurred and explained that Defendant 14 Phillips’ response pertained to an appeal filed by another inmate and it was inadvertently attached 15 to Plaintiff’s inmate appeal. (Id.) Plaintiff’s request was denied on the ground that inmate appeal 16 forms are legal documents and cannot be removed from inmates’ central files. (Id.) The earlier 17 appeal against Officer Clark for closing Plaintiff’s hand in his cell door was reassigned for review 18 and response. (Id.) 19 Plaintiff alleges that Defendant Phillips retaliated against him for using the inmate appeals 20 process by making false statements that he interviewed Plaintiff and that Plaintiff told him he was 21 mad about receiving a rules violation report for masturbation. Plaintiff alleges that Defendants 22 Phillips, Knowles, Fisher, and Chrones were involved in a conspiracy to violate his rights and 23 endanger his safety. 24 B. 25 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 26 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because First Amendment Retaliation Claim 27 28 3 Defendant Fisher interviewed Plaintiff for that appeal. 3 1 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 2 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 3 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Retaliation against a prisoner’s 4 First Amendment right to file a prison grievance may support a claim under section 1983. Bruce v. 5 Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 6 Although Plaintiff asserts that Defendant Phillips made false statements in retaliation against 7 him for filing an inmate appeal, there are no specific facts supporting that conclusion and Plaintiff’s 8 exhibits evidence nothing more than an administrative error. Plaintiff’s hand was shut in his cell 9 door and he appealed the incident. The second level appeal response at issue addresses a “living 10 conditions” appeal in which the appellant repeatedly kicked his cell door, which led Officer Palombo 11 to pepper spray the appellant. (Exs., pp. 33-34.) The appellant claimed that excessive force was 12 used against him, and he sought placement of the appeal in Palombo’s file and disciplinary action 13 against Palombo. (Id.) Defendant Phillips interviewed the appellant and the appellant explained he 14 had been kicking his cell door because he was mad about having been issued a CDC 115 for 15 masturbation. (Id.) 16 Defendant Chrones addressed Plaintiff’s subsequent appeal complaining about the false 17 information. (Id.) Prison officials determined that an administrative error had occurred and the 18 written response to Plaintiff’s earlier appeal belonged with an appeal submitted by another inmate. 19 (Id.) However, Defendant Chrones declined to remove the erroneous appeal from Plaintiff’s central 20 file because it was a legal document.4 (Id.) 21 Although Plaintiff focuses on the section of the response in which it is represented that he 22 was interviewed and he told the interviewer he was mad about a rules violation report for 23 masturbation, it is plain that the entire second level response relates to a grievance about being 24 pepper sprayed for kicking a cell door and not to Plaintiff’s grievance about having his hand shut in 25 /// 26 27 28 4 The third level response from the Inmate Appeals Branch in Sacramento states that the institution represented that an amended response to Plaintiff’s appeal regarding his hand being shut in the cell door was in the process of being prepared, reviewed, and signed, and a copy would be placed in Plaintiff’s central file. (Exs., pp. 2829.) 4 1 his cell door. As such, there is simply no support for Plaintiff’s claim that Defendant Phillips made 2 up information in order to retaliate against Plaintiff for using the inmate appeals process. 3 Plaintiff’s claim that Defendants conspired to retaliate against him also fails. Conspiracy 4 under section 1983 requires a showing of an agreement or a meeting of the minds to violate 5 Plaintiff’s constitutional rights, and an actual deprivation of those constitutional rights. Avalos v. 6 Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001). 7 Plaintiff’s conclusory allegations of a conspiracy between Defendants are not sufficient to support 8 a claim, and further, there is no underlying claim for retaliation upon which to base the conspiracy 9 claim. Iqbal, 129 S.Ct. at 1949-50; Avalos, 596 F.3d at 592. 10 C. 11 Plaintiff contends that the false accusation of masturbation in the appeal response caused a 12 threat to his safety, in violation of the Eighth Amendment, which protects prisoners from inhumane 13 conditions of confinement. Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009); Morgan v. 14 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out 15 a conditions of confinement claim, and only those deprivations denying the minimal civilized 16 measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment 17 violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations 18 omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege 19 facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of 20 serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Foster, 21 554 F.3d at 812. Eighth Amendment Failure-to-Protect Claim 22 It is questionable that referencing the issuance of a rules violation report for masturbation in 23 the course of addressing an administrative appeal could constitute an objectively serious deprivation 24 upon which an Eighth Amendment claim may be based. Regardless, there is no support for the claim 25 that Defendants knew of and disregarded an excessive risk of harm to Plaintiff’s safety. Other than 26 Plaintiff’s conclusory allegation of Defendant Phillips’ motivation, which is contradicted by the 27 exhibits, there is no indication that Defendants intended to harm Plaintiff or that they turned a blind 28 eye to a substantial risk of harm. 5 1 Further, although Plaintiff alleges that he fears for his life because inmate Ray Ford circulated 2 copies of the appeal to the inmate population, it was Plaintiff who gave Ford the appeal and Ford 3 who initiated circulation of the information. (2nd Amend. Comp., p. 7.) Blame for Plaintiff’s 4 decision to disclose the documents to Ford or for Ford’s decision to broadcast the issue to other 5 inmates, as ill-conceived as they may have been in hindsight, may not be transferred onto 6 Defendants. 7 D. 8 In addition to alleging a conspiracy to retaliate against him under section 1983, Plaintiff 9 alleges violations of section 1985(3) and section 1986. A section 1985(3) requires “four elements: 10 (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class 11 of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; 12 and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person 13 or property or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska 14 Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A racial, or perhaps otherwise 15 class-based, invidiously discriminatory animus is an indispensable element of a section 1985(3) 16 claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and citation 17 omitted). “Section 1986 authorizes a remedy against state actors who have negligently failed to 18 prevent a conspiracy that would be actionable under § 1985.” Cerrato v. San Francisco Cmty. Coll. 19 Dist., 26 F.3d 968, 971 n.7 (9th Cir. 1994). 20 Section 1985 and 1986 Claims Plaintiff’s second amended complaint is devoid of any support for the existence of a section 21 1985(3) claim or a section 1986 claim. 22 III. Conclusion and Recommendation 23 Plaintiff’s second amended complaint fails to state any claims upon which relief may be 24 granted under section 1983, 1985(3), or 1986. The deficiencies at issue are not capable of being 25 cured through amendment and therefore, the Court RECOMMENDS this action be DISMISSED, 26 with prejudice, for failure to state a claim. 27 These Findings and Recommendations will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 6 1 days after being served with these Findings and Recommendations, Plaintiff may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 5 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Dated: icido3 January 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7