-BAM (PC) Manriquez v. Huchins et al, No. 1:2009cv00456 - Document 173 (E.D. Cal. 2011)

Court Description: FINDINGS And RECOMMENDATIONS Recommending Dismissing Certain Claims And Defendants, ORDER Directing Clerk Of The Court To File The Second Amended Complaint (ECF No. 162 ), signed by Magistrate Judge Barbara A. McAuliffe on 12/15/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/20/2012.(Fahrney, E)
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-BAM (PC) Manriquez v. Huchins et al Doc. 173 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 DANIEL MANRIQUEZ, CASE NO. 1:09-cv-00456-LJO-BAM PC 9 Plaintiff, 10 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS 11 HUCHINS, et al., 12 Defendants. ORDER DIRECTING CLERK OF THE COURT TO FILE THE SECOND AMENDED COMPLAINT 13 / (ECF No. 162) 14 15 I. Screening Requirement 16 Plaintiff Daniel Manriquez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2011, an order 18 issued directing Plaintiff to either file an amended complaint or notify the Court of his willingness 19 to proceed only on the claims found to be cognizable. On November 22, 2011, a second amended 20 complaint was lodged. 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 25 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 26 In determining whether a complaint states a claim, the Court looks to the pleading standard 27 under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and 28 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 1 Dockets.Justia.com 1 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 2 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 3 Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 4 544, 555, 127 S. Ct. 1955 (2007)). 5 Under section 1983, Plaintiff must demonstrate that each defendant personally participated 6 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires 7 the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. 8 at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that] 9 pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line 10 between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting 11 Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations 12 contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129 13 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). 15 II. Complaint Allegations 16 On February 28, 2007, while housed in the Administrative Segregation Unit (“ASU”), 17 Plaintiff and other inmates engaged in a protest against prison officials.1 Plaintiff covered his cell 18 window with paper, refused to relinquish his food tray, and refused to cuff up. The inmates informed 19 prison officials that the protest would not turn violent if the officials would agree to address their 20 complaints. 21 Defendants Huchins and Reynoso refused to address the inmates complaints and ordered that 22 the X10 Barricade Removal Device be used. Plaintiff alleges that the device is the most dangerous 23 chemical weapon available to prison officials and is not to be used unless there is a threat of injury 24 to persons, substantial amounts of valuable property or the inmate is attempting to escape or cause 25 a riot. Defendants Hutchins, Reynoso, Hacker, and Roberson ordered an extraction team to extract 26 the inmates from their cells, and that inmates be housed back in the contaminated cells. 27 1 28 Forty four Hispanic inmates were involved in the disturbance and were extracted from their cells in the ASU. (Sec. Am. Compl. 19, ECF No. 162.) 2 1 Defendants Munoz, Daley, Perez, Paz, Morse, Omos, and Clausing approached Plaintiff’s 2 cell. Defendants Munoz, Clausing, and Omos sprayed seven to eight second bursts of pepper spray 3 into Plaintiff’s cell rather than the one to three second bursts that were administered to most inmates, 4 allegedly a lethal amount of pepper spray. Defendants Reynoso, Hacker, Roberson, Daley, Perez, 5 Paz, and Morse were present and did not intervene. 6 Following the administration of the pepper spray, Defendants Munoz, Daley, Clausing, and 7 Omos refused to immediately extract Plaintiff from his cell, but demanded that Plaintiff hand them 8 his food tray and insisted that Plaintiff show them his genitals, underarms, and feet slowly and in an 9 unnecessary order, and Plaintiff was forced to kneel so Defendant Perez could apply leg restraints, 10 all which allegedly served no legitimate penological purpose but were intended to cause pain. 11 Defendants Reynoso, Hacker, Robertson, Paz, and Morse were present and did not intervene. 12 Plaintiff states that once a prisoner stops what he is doing and offers to be restrained, prison officials 13 must immediately restrain and remove him from the contaminated area and provide medical attention 14 and decontamination without subjecting him to a search or leg irons. 15 Plaintiff was then turned over to the decontamination team, Defendants Paz, Morse, 16 Henrichsen, and Lanlger. Defendants Paz and Morse rinsed Plaintiff with water for several minutes. 17 Defendants Langler and Henrichsen noted Plaintiff’s injuries and refused medical attention. 18 Defendants Reynoso, Hacker, Roberson, Munoz, Daley, Perez, Clausing, and Omos stood by and 19 did not intervene. Defendants Langler and Henrichsen provided Plaintiff with instructions on self 20 decontamination.2 The failure to decontaminate caused Plaintiff excruciating pain to his skin, chest, 21 eyes, and lungs. 22 Defendants Munoz, Perez, Omos, Clausing, and Daley followed the order of Defendants 23 Huchins, Reynoso, Hacker, and Robertson to remove all property from Plaintiff’s cell. Defendants 24 Paz and Morse placed Plaintiff back in the contaminated cell. Defendants Reynoso, Hacker, 25 Roberson, and Hutchins stood by and allowed Plaintiff to be placed back in the contaminated cell. 26 27 28 2 Although Plaintiff now states that he does not remember receiving the instructions, in his first amended complaint he states that the instructions were of no benefit because he did not have means to decontaminate himself. (First Amended Compl. 4 n.4, ECF No. 149.) 3 1 Plaintiff was left in the contaminated cell for ten days causing pain from being exposed to the 2 chemicals. 3 Plaintiff brings this action for excessive force and deliberate indifference to serious medical 4 needs and conditions of confinement in violation of the Eighth Amendment seeking compensatory 5 and punitive damages. 6 III. Discussion 7 A. 8 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 9 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 10 U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981). The inquiry as to whether a prison official’s use of 11 force constitutes cruel and unusual punishment is “whether force was applied in a good-faith effort 12 to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 13 McMillian, 503 U.S. 1, 6-7, 112 S. Ct. 995, 998 (1992); Whitley v. Albers, 475 U.S. 312, 320, 106 14 S. Ct. 1078, 1085 (312). Excessive Force 15 “The objective component of an Eighth Amendment claim is . . . contextual and responsive 16 to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S. Ct. at 1000 (internal 17 quotation marks and citations omitted). A prison official’s use of force to maliciously and 18 sadistically cause harm violates the contemporary standards of decency. Wilkins v. Gaddy, __ U.S. 19 __, 130 S. Ct. 1175, 1178 (2010). However, “[n]ot ‘every malevolent touch by a prison guard gives 20 rise to a federal cause of action.” Wilkins, 130 S. Ct. at 1179 (quoting Hudson, 503 U.S. at 9, 112 21 S. Ct. at 1000). Factors that can be considered are “the need for the application of force, the 22 relationship between the need and the amount of force that was used, [and] the extent of injury 23 inflicted.” Whitley, 475 U.S. at 321, 106 S. Ct. at 1085; Marquez v. Gutierrez, 322 F.3d 689, 692 24 (9th Cir. 2003). Although the extent of the injury is relevant, the inmate does not need to sustain 25 serious injury. Wilkins, 130 S. Ct. at 1178-79; Hudson, 503 U.S. at 7, 112 S. Ct. at 999. 26 1. Order to Extract Plaintiff by Use of Pepper Spray 27 Plaintiff’s allegation that Defendants Reynoso, Hacker, and Roberson ordered the use of a 28 chemical weapon to extract him from his cell fails to state a cognizable claim. Plaintiff states that 4 1 the order to use the X10 BRD to extract inmates from their cells was excessive and should not have 2 been ordered because the inmates were engaged in a peaceful protest and were not threatening 3 violence. However, according to the allegations in the complaint, the inmates informed officials that 4 no violence would be used if officials addressed their concerns. In this instance, prison officials 5 were confronted with a situation where forty four inmates in the ASU were involved in a protest and 6 refusing to comply with prison officials. Insubordination is a matter taken very seriously within the 7 confines of the prison setting. An inmate’s failure to comply with prison officials would create a 8 need for the use of force to gain compliance and restore order. See Johnson v. Turmezei, 2008 WL 9 345929, * 7 (E.D. Cal. Feb. 6, 2008). Prison officials were notified that no violence would be used 10 as long as the inmates demands were met. While Plaintiff asserts that this shows the force used was 11 excessive and unnecessary, the inmates only agreed that no force would be used if prison officials 12 complied with their demands. Faced with a situation of a potential riot in the ASU, it was within the 13 deference of prison officials to order the use of pepper spray to handle the breach of prison 14 discipline. Whitley, 475 U.S. at 322, 106 S. Ct. at 1085. 15 By Plaintiff’s own admission, he did not comply with orders to uncover his window, return 16 his food tray, and cuff up until his compliance was forced through the application of pepper spray. 17 Plaintiff’s allegations fall short of stating a plausible claim that the decision to use pepper spray to 18 quell the inmate disturbance was anything other than a good faith effort to restore discipline in the 19 facility. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). While Plaintiff alleges that the 20 decision to use pepper spray was malicious and for the purpose of causing harm, at the very least, 21 it is equally plausible that the force was applied in a good-faith effort to restore discipline. While 22 the Court is mindful that this is the pleading stage, the mere possibility that misconduct occurred is 23 insufficient to support a claim against Defendants Reynoso, Hacker, and Roberson for ordering the 24 use of pepper spray to quell the inmates noncompliance. 25 2. Use of Pepper Spray 26 At the pleading stage, Plaintiff’s allegation that Defendants Munoz, Clausing, and Omos 27 sprayed seven to eight second bursts of pepper spray into Plaintiff’s cell is sufficient to state a 28 cognizable claim for excessive force, however Plaintiff fails to state a claim against any other named 5 1 defendant for the use of pepper spray as discussed below. 2 B. 3 To prove a violation of the Eighth Amendment the plaintiff must “objectively show that he 4 was deprived of something ‘sufficiently serious,’ and make a subjective showing that the deprivation 5 occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d 6 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that 7 “prison officials were aware of a “substantial risk of serious harm” to an inmates health or safety and 8 that there was no “reasonable justification for the deprivation, in spite of that risk.” Id. (quoting 9 Farmer v. Brennan, 511 U.S. 825, 837, 844, 114 S. Ct. 1970, 1979, 1982 (1994)). Officials may be 10 Deliberate Indifference aware of the risk because it is obvious. Thomas, 611 F.3d at 1152. 11 1. Use of Pepper Spray 12 Prison officials are required “to take reasonable steps to protect inmates from physical 13 abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other grounds by 14 Sandin v. O’Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995)). To state a claim the plaintiff must show 15 that the defendants acted with deliberate indifference. Thomas, 611 F.3d at 1150 (citations omitted). 16 Additionally, an officer can only be held liable for failing to intercede if he had a realistic 17 opportunity to intercede and failed to do so. Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 18 2000). 19 Plaintiff alleges that Defendants Munoz, Clausing, and Omos approached his cell and sprayed 20 an excessive amount of pepper spray into his cell while Defendants Reynoso, Hacker, Roberson, 21 Daley, Perez, Paz, and Morse were present and knew that excessive exposure to pepper spray was 22 potentially lethal. Plaintiff’s complaint fails to state facts to indicate that Defendants Reynoso, 23 Hacker, Roberson, Daley, Perez, Paz, and Morse were aware that he was about to be exposed to an 24 excessive amount of pepper spray. According to Plaintiff’s complaint Defendants Munoz, Clausing, 25 and Omos were in front of the door to his cell and the remaining defendants were merely present. 26 Even assuming that Defendants Reynoso, Hacker, Roberson, Daley, Perez, Paz, Morse, or Omos 27 were able to observe that an excessive amount of pepper spray was being sprayed into Plaintiff’s cell, 28 the incident lasted only a matter of seconds and there is no indication they had an ability to intervene. 6 1 Cunningham, 229 F.3d at 1289-90. Plaintiff fails to state a cognizable claim against Defendants 2 Reynoso, Hacker, Roberson, Daley, Perez, Paz, and Morse for failing to intervene. 3 2. Delayed Removal From Cell 4 Plaintiff alleges that Defendants Munoz, Daley, Clausing, and Omos refused to immediately 5 extract him from his cell. To the extent that Plaintiff relies on prison regulations to show a violation 6 of the Eighth Amendment, Plaintiff fails to state a claim. Section 1983 provides a cause of action 7 where a state actor’s “conduct deprived the claimant of some right, privilege, or immunity protected 8 by the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1987) 9 (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. 10 Williams, 474 U.S. 327, 328 (1986)). “To the extent that the violation of a state law amounts to the 11 deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, 12 [s]ection 1983 offers no redress.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 13 1997), quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996). Nor is there 14 any liability under § 1983 for violating prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th 15 Cir. 2009) (quoting Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997)). 16 Plaintiff claims that he was subjected to an unnecessary search prior to removing him from 17 the cell. Plaintiff had been in his cell for an unspecified amount of time with the windows covered 18 and did not remove the window covering or comply with officials until after he was sprayed with 19 the pepper spray. Officers would be unaware of what Plaintiff had been doing prior to extracting 20 him from his cell. Additionally, officials were faced with an incident that involved forty four 21 inmates in the ASU refusing to comply. While Plaintiff alleges that Defendants Munoz, Clausing, 22 Daley, and Omos intentionally delayed removing him from his cell maliciously and sadistically to 23 cause him pain, the allegations in the complaint fail to state a plausible claim that the search and 24 application of hand and leg restraints were not a legitimate response to a security concern given the 25 events that had occurred. 26 The circumstances, nature, and duration of the deprivations are critical in determining 27 whether the conditions complained of are grave enough to form the basis of a viable Eighth 28 Amendment claim.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Plaintiff states that when 7 1 ordered to show officers his right foot, he showed his left instead, and the officers delayed by telling 2 him to show them his right foot first. Any delay that was caused in this situation would be due to 3 Plaintiff failing to comply with the order given by the officer. Had Plaintiff shown the foot that was 4 ordered there would have been no delay. Additionally, Plaintiff alleges that after he was removed 5 from his cell further delay occurred because “pointless” leg restraints were applied. However, leg 6 restraints are a legitimate security device used by prison officials. Plaintiff allegations that he was 7 subjected to an unnecessarily slow search prior to being removed from the cell and delay after his 8 removal from the cell due to leg irons being applied fail to state more than a brief delay to ensure the 9 security of the institution and do not rise to the level of an Eighth Amendment violation. Since 10 Plaintiff has failed to state a cognizable claim based upon the removal from his cell, his claims 11 against Defendants Reynoso, Hacker, Robertson, Paz, and Morse for failure to intervene also fail to 12 state a cognizable claim. 13 3. Failure to Properly Decontaminate 14 Plaintiff alleges that Defendants Paz, Morse, Henrichsen, and Langler failed to properly 15 decontaminate him following the application of pepper spray. A prison officials failure to 16 decontaminate an inmate after exposure to pepper spray may support a claim of deliberate 17 indifference. Clement, 298 F.3d at 905. Plaintiff is not alleging a failure to decontaminate or a delay 18 in decontamination as he was rinsed down for several minutes and returned to his cell within minutes 19 of being pepper sprayed. Although Plaintiff alleges that Defendants Paz and Morse failed to properly 20 decontaminate him, he has not alleged any specific facts to support the claim that Defendants Paz 21 and Morse knowingly disregarded a substantial risk of harm to his health. 22 Plaintiff states that when he was initially pepper sprayed he experienced gagging, choking, 23 unbearable lung and chest pain, and a burning sensation. After the initial exposure Plaintiff claims 24 he was in obvious pain. After Plaintiff was removed from his cell he was taken to be rinsed down 25 by Defendants Paz and Morse. Defendants Paz and Morse rinsed Plaintiff down for several minutes 26 and then referred him to the medical team for evaluation. Defendants Langler and Henrichsen 27 evaluated Plaintiff and noted his injuries. Plaintiff alleges that Defendants Langler and Henrichsen 28 failed to provide medical care, however he does not set forth facts to indicate that either defendant 8 1 was aware that additional medical care was needed. Additionally, although Plaintiff states that he 2 does not remember if he was given decontamination instructions by Defendants Langler and 3 Henrichsen, he attaches the medical evaluation form to his complaint which shows that 4 decontamination instructions were given. 5 While Plaintiff states that the risk of harm was obvious, he fails to set forth facts to show why 6 it would be obvious that the decontamination was insufficient. Plaintiff’s complaint merely states 7 that he was in obvious pain, which is consistent with exposure to pepper spray and fails to show that 8 he was at risk of serious harm. Plaintiff’s conclusory statement that the defendants were aware that 9 additional decontamination was needed is insufficient to show that any defendant was aware that he 10 was at risk of serious harm and failed to act in response. Thomas, 611 F.3d at 1150. 11 To support his claim, Plaintiff submits a label from the machine used to administer the 12 pepper spray, and OC and first aid procedures. While Plaintiff alleges that Defendants Paz, Morse, 13 Henrichsen, and Langler knew that soap and water decontamination was medically required, the first 14 aid instructions which are included in his complaint state that emergency procedure is to provide 15 fresh air, and irrigate with copious amounts of cool water. Further instructions state to flush with 16 cool water and wash with mild soap and water. Defendants Paz and Morse rinsed Plaintiff down for 17 several minutes with water and referred him immediately to be evaluated by medical staff. Plaintiff 18 has failed to show that Defendants Paz and Morse were deliberately indifferent to his serious medical 19 need. 20 A medical evaluation was conducted by Defendants Langler and Henrichsen. Plaintiff’s 21 statements that a shower was medically required to properly decontaminate is a difference of opinion 22 between him and medical staff and is insufficient to state a cognizable claim. Franklin v. Oregon, 23 662 F.2d 1337, 1355 (9th Cir. 1981); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). 24 Plaintiff has failed to show that any defendant was aware that Plaintiff was at a risk of serious 25 harm and failed to adequately respond. Thomas, 611 F.3d at 1150. Since Plaintiff has failed to state 26 a claim based upon the decontamination by Defendants Paz, Morse, Langler, and Henrichsen, the 27 failure to intervene claim against Defendants Reynoso, Hacker, Roberson, Munoz, Daley, Perez, 28 Clausing, and Omos fails to state a cognizable claim. 9 1 4. Rehousing in Contaminated Cell 2 Plaintiff’s allegation that Defendants Morse and Paz placed Plaintiff in the contaminated cell 3 and Defendants Hutchins, Reynoso, Hacker, and Roberson ordered that Plaintiff be placed back into 4 his contaminated cell from which all property had been removed is sufficient to state a cognizable 5 claim. Plaintiff claims that Defendants Munoz, Daley, Perez, Omos and Clausing did not 6 decontaminate his cell, although they were aware that he was going to be housed there and that the 7 pepper spray made the cell uninhabitable. However, Plaintiff’s allegations fail to set forth factual 8 allegations that Defendants Munoz, Daley, Perez, Omos, or Clausing were responsible for 9 decontamination of Plaintiff’s cell or placed him in the cell knowing that it was uninhabitable. Nor 10 has Plaintiff alleged facts sufficient to show that Defendants Munoz, Daley, Perez, Omos, Clausing, 11 Langler, or Henrichsen were involved in the decision to rehouse Plaintiff in the contaminated cell 12 or had the authority to decide where Plaintiff was housed. 13 A person deprives another “of a constitutional right, within the meaning of section 1983, if 14 he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which 15 he is legally required to do that causes the deprivation of which [the plaintiff complains].” Johnson 16 v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). “Causation is, of course, a required element of a § 1983 17 claim.” Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir.1999). When resolving a 18 claim under the Eighth Amendment against individual defendants, causation must be resolved via 19 “a very individualized approach which accounts for the duties, discretion, and means of each 20 defendant.” Leer, 844 F.2d at 633-34, citing with approval Williams v. Bennett, 689 F.2d 1370, 21 1384 (11th Cir. 1982) (“There can be no duty, the breach of which is actionable, to do that which 22 is beyond the power, authority, or means of the charged party. One may be callously indifferent to 23 the fate of prisoners and yet not be liable for their injuries. Those whose callous indifference results 24 in liability are those under a duty -- possessed of authority and means -- to prevent the injury.”) 25 Plaintiff’s allegations against Defendants Langler, Henrichsen, Munoz, Daley, Perez, Omos and 26 Clausing fail to establish that any act or failure to act by any of these defendants caused Plaintiff to 27 be housed in the contaminated cell. 28 /// 10 1 5. Denial of Necessities. 2 Plaintiff alleges that “defendants” refused to provide him with necessities for ten days. As 3 Plaintiff was informed in the screening order issued October 25, 2011, Plaintiff may not group all 4 Defendants and generally assert that they are liable for alleged deprivations without linking any 5 individual to the violation of his constitutional rights. Plaintiff has stated a claim against Defendants 6 Hutchins, Reynoso, Hacker, and Roberson for ordering that all Plaintiff’s property be removed from 7 his cell which denied him of the ability to decontaminate himself and his cell, however, Plaintiff has 8 failed to set forth factual allegations linking any other defendant to his conditions of confinement. 9 While Plaintiff alleges that there was no legitimate penological purpose for removing the 10 items from his cell, he had just been involved in an incident where he refused to comply with prison 11 officials which resulted in forty four inmates being extracted from their cells. This would obviously 12 cause a serious disruption to the operation of the prison. 13 Plaintiff alleges that he was refused bedding, a mattress, shoes, and socks and that 14 Defendants Morse, Paz, Perez, Daley, Clausing, Munoz, Omos, Langler, and Henrichsen were 15 deliberately indifferent to the deprivation of his property. The allegations against these defendants 16 are based upon their personal presence when items were removed from his cell or the fact that the 17 defendant followed orders of his superior officer in removing items from the cell which is 18 insufficient to establish liability. Leer, 844 F.2d at 633-34. Plaintiff’s deprivations stem from the 19 order given by Defendants Hutchins, Reynoso, Hacker, and Roberson to rehouse him in his 20 contaminated cell. Plaintiff has failed to state a cognizable claim that Defendants Morse, Paz, Perez, 21 Daley, Clausing, Munoz, Omos, Langler, and Henrichsen caused the unconstitutional conditions of 22 confinement. 23 IV. Conclusion and Recommendation 24 The Court finds that Plaintiff’s second amended complaint states a cognizable claim against 25 Defendants Munoz, Clausing, Omos, Hutchins, Reynoso, Hacker, Roberson, Morse, and Paz for 26 violation of the Eighth Amendment, but does not state any other claims for relief under section 1983. 27 Because Plaintiff has previously been notified of the deficiencies and given leave to amend, the 28 Court recommends that the non-cognizable claims be dismissed, with prejudice. Noll v. Carlson, 11 809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the foregoing, it is HEREBY RECOMMENDED that: 1 1. November 22, 2011; 2 3 The Clerk of the Court is ordered to file the second amended complaint, lodged 2. This action proceed on Plaintiff’s second amended complaint, lodged November 22, 2011, against 4 a. 5 spraying Plaintiff; 6 b. 7 cell without a means to decontaminate from the pepper spray ; 9 c. 10 3. 4. 16 17 18 19 20 21 22 23 24 Plaintiff’s remaining Eighth Amendment claims be dismissed, with prejudice, for Defendants Perez, Daley, Langler, and Henrichsen be dismissed, with prejudice, for Plaintiff’s failure to state a cognizable claim against them. 14 15 Defendants Morse and Paz for placing Plaintiff in the contaminated cell; failure to state a cognizable claim under section 1983; and 12 13 Defendants Hutchins, Reynoso, Hacker, and Roberson for ordering that Plaintiff’s property be removed and he be placed back into his contaminated 8 11 Defendants Munoz, Clausing and Omos for excessive force in pepper These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: 10c20k December 15, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12