(PC) Fuentes v. CDCR Holding Corporation Representatives, No. 1:2017cv00745 - Document 12 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed Against Defendant G. Rodriguez on Plaintiff's Claims for Excessive Force in Violation of the Eighth Amendment, for an Unreasonable Search in Violation of the Fourth Amendment, for Retaliation in Violation of the First Amendment, for Assault, and for Battery, and that all other Claims and Defendants be Dismissed with Prejudice re 9 , signed by Magistrate Judge Erica P. Grosjean on 3/28/18. Referred to Judge O'Neill. Objections to F&R Due Within 21-Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 JONATHAN FUENTES, Case No. 1:17-cv-00745-EPG (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION v. PROCEED AGAINST DEFENDANT G. RODRIGUEZ ON PLAINTIFF’S CLAIMS CALIFORNIA DEPARTMENT OF FOR EXCESSIVE FORCE IN VIOLATION CORRECTIONS AND OF THE EIGHTH AMENDMENT, FOR AN REHABILITATION HOLDING UNREASONABLE SEARCH IN VIOLATION CORPORATION REPRESENTATIVES, OF THE FOURTH AMENDMENT, FOR RETALIATION IN VIOLATION OF THE et al., FIRST AMENDMENT, FOR ASSAULT, AND Defendants. FOR BATTERY, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED WITH PREJUDICE (ECF NO. 9) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 23 24 Jonathan Fuentes (“Plaintiff”) is a state prisoner proceeding pro se and in forma 25 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 26 commencing this action on May 30, 2017. (ECF No. 1). The Court issued an order finding 27 certain claims cognizable, and gave Plaintiff an option to file an amended complaint, proceed 28 on the cognizable claims, or stand on his complaint subject to the Court issuing findings and 1 1 recommendations to a district judge consistent with the screening order. (ECF No. 8). 2 Plaintiff filed a First Amended Complaint on February 26, 2018. (ECF No. 9). The 3 allegations in the First Amended Complaint relate to a digital search for contraband at Wasco 4 State Prison Reception Center, and Defendants’ actions before and after that search. 5 The Court has reviewed Plaintiff’s First Amended Complaint and recommends allowing 6 certain of Plaintiff’s claims against Defendant G. Rodriguez to proceed past the screening 7 stage. The Court recommends dismissing all other claims and defendants with prejudice. 8 Plaintiff has twenty-one days to file objections to these findings and recommendations to the 9 assigned district judge. 10 I. SCREENING REQUIREMENT 11 The Court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 13 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 14 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 15 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 16 ' 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 6), the Court may 17 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 18 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 19 determines that the action or appeal fails to state a claim upon which relief may be granted.” 20 28 U.S.C. ' 1915(e)(2)(B)(ii). 21 A complaint is required to contain “a short and plain statement of the claim showing 22 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 23 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 26 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 27 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 28 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 2 1 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 2 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 3 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 4 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 5 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 6 pro se complaints should continue to be liberally construed after Iqbal). SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 7 II. 8 Plaintiff alleges that, on October 24, 2016, he was assigned cell number 250, which was 9 confined general population at Wasco State Prison-Reception Center. His cellmate was Duran, 10 CDCR No. F-58443. That day, several correctional officers and a sergeant came to the 11 building to conduct cell searches. 12 Plaintiff’s cell door and directed him and his cell mate to unclothe down to boxers and shower 13 shoes, and then instructed them to “turn around and cuff up.” At about 9:20 am, Defendant G. Rodriguez came to 14 On the way down the stairs, Defendant G. Rodriguez pushed plaintiff against the wall 15 next to the c/o office. Defendant G. Rodriguez used vulgarity and lifted Plaintiff’s cuffed arms 16 behind him, causing pain to Plaintiff’s right shoulder and wrist. Plaintiff alleges this was 17 unprovoked and was malicious and sadistic. 18 Defendant G. Rodriguez then conducted a body cavity search in front of numerous 19 inmates and correctional officers. Plaintiff alleges this was unreasonable because he was 20 handcuffed and could not get rid of any evidence. Defendant G. Rodriguez reached inside 21 Plaintiff’s buttocks, digitally. 22 Rodriguez said “shut up turn around, and shut up.” 23 24 When Plaintiff asked what he was doing, Defendant G. Defendant M. Venegas had an opportunity to intervene and prevent this intrusive cavity search but failed to do so. 25 Defendant G. Rodriguez found alleged contraband hidden in Plaintiff’s buttocks and 26 turned it over to Defendant M. Venegas. Plaintiff continued to verbally complain about the 27 search. 28 Plaintiff was then escorted to the program office cell cage. Plaintiff complained to the 3 1 officers’ supervisors, E. Venegas and E. Rivera. Plaintiff was interviewed by 2 unknown 2 officers of the Investigative Services Unit. Plaintiff was advised if he proceeded, he would be 3 placed in Administrative Segregation. 4 5 Plaintiff told Defendant E. Venegas that he suffered from chronic pain to his right shoulder, wrist, and rectum. Defendant E. Venegas ignored these complaints. 6 Since the event, Plaintiff suffers from pain in his right shoulder, right arm, and rectum. 7 The next day, October 25, 2016, Plaintiff was transferred to Calipatria State Prison. All 8 of his reading materials, materials and supplies necessary for access to courts, and personal 9 hygiene articles were destroyed. Defendant G. Rodriguez was the last person to search and 10 seize Plaintiff’s property. Plaintiff appears to allege that Defendant G. Rodriguez destroyed 11 Plaintiff’s property in retaliation for bringing a complaint to a supervisor. 12 Defendant J. Cronjager failed to take disciplinary or other action against Defendants G. 13 Rodriguez and M. Venegas. Defendants J. Cronjager, E. Rivera, and E. Venegas failed to 14 establish adequate procedures for providing medical care to Plaintiff, including inadequate 15 training, supervision or control of subordinates. 16 17 18 19 Plaintiff also claims that the debilitating conditions of the Reception Center constitute cruel and unusual punishment. They also strip inmates of their dignity. III. DISCUSSION A. Section 1983 20 The Civil Rights Act under which this action was filed provides: 21 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 22 23 24 25 26 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 27 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 28 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 4 1 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 2 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 3 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 4 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 5 under color of state law, and (2) the defendant deprived him of rights secured by the 6 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 7 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 8 “under color of state law”). A person deprives another of a constitutional right, “within the 9 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 10 omits to perform an act which he is legally required to do that causes the deprivation of which 11 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 12 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 13 causal connection may be established when an official sets in motion a ‘series of acts by others 14 which the actor knows or reasonably should know would cause others to inflict’ constitutional 15 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 16 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 17 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 18 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 19 Additionally, a plaintiff must demonstrate that each named defendant personally 20 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 21 must be an actual connection or link between the actions of the defendants and the deprivation 22 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 23 436 U.S. 658, 691, 695 (1978). 24 B. Excessive Force 25 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 26 restraints on prison officials, who may not… use excessive physical force against prisoners.” 27 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 28 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry 5 1 is… whether force was applied in a good-faith effort to maintain or restore discipline, or 2 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 3 When determining whether the force was excessive, the court looks to the “extent of 4 injury suffered by an inmate…, the need for application of force, the relationship between that 5 need and the amount of force used, the threat ‘reasonably perceived by the responsible 6 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 7 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of 8 physical force generally do not implicate the Eighth Amendment, significant injury need not be 9 evident in the context of an excessive force claim, because “[w]hen prison officials maliciously 10 and sadistically use force to cause harm, contemporary standards of decency always are 11 violated.” Hudson, 503 U.S. at 9. 12 The Court finds that, liberally construed, Plaintiff has stated a cognizable claim for 13 relief against Defendant G. Rodriguez for excessive force in violation of the Eighth 14 Amendment. Plaintiff alleges that Defendant G. Rodriguez pushed Plaintiff against a wall, 15 used vulgarity, and lifted Plaintiff’s cuffed arums up behind him, causing extreme unnecessary 16 and wanton infliction of pain to Plaintiff’s right shoulder and wrist. 17 The Court recommends allowing the state law claims of assault and battery to proceed 18 for the same reason. “Assault and battery are defined in the California Penal Code. Assault is 19 the ‘unlawful attempt, coupled with a present ability, to commit a violent injury on the person 20 of another.’ Cal.Penal Code § 240. ‘A battery is any willful and unlawful use of force or 21 violence upon the person of another.’ Cal.Penal Code § 242. ‘Harmful or offensive contact, 22 intentionally done, is the essence of battery, while apprehension of that contact is the basis of 23 assault.’ 5 B.E. Witkin, Summary of Cal. Law, Torts § 383 (10th ed.2005) (citations omitted).” 24 Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). 25 Under California civil law, the elements of assault are: “(1) that defendant intended to 26 cause harmful or offensive contact, or the imminent apprehension of such contact, and (2) that 27 plaintiff was put in imminent apprehension of such contact.” Brooks v. United States, 29 28 F.Supp.2d 613, 617 (N.D.Cal.1998) (citing Restatement (Second) of Torts § 21). “Physical 6 1 injury is not a required element of either assault or battery. The tort of assault is complete 2 when the anticipation of harm occurs.” Kiseskey v. Carpenters' Tr. for So. California, 144 Cal. 3 App. 3d 222, 232 (Cal. Ct. App. 1983). 4 Under California civil law, the elements of a battery are: “(1) the defendant 5 intentionally did an act that resulted in harmful or offensive contact with the plaintiff's person, 6 (2) the plaintiff did not consent to the contact, and (3) the contact caused injury, damage, loss 7 or harm to the plaintiff.” Tekle, 511 F.3d at 855. Accord Piedra v. Dugan, 123 Cal. App. 4th 8 1483, 1495 (Cal. Ct. App. 2004). 9 10 Plaintiff’s allegations are enough to state a claim for assault and battery, and the Court recommends exercising supplemental jurisdiction over this related claim. 11 However, Plaintiff’s allegations do not establish a claim for sexual assault (or sexual 12 battery). “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the 13 Eighth Amendment.” Wood v. Beauclair, 692 F. 1041, 1046 (9th Cir. 2012). “A corrections 14 officer's intentional contact with an inmate's genitalia or other intimate area, which serves no 15 penological purpose and is undertaken with the intent to gratify the officer's sexual desire or 16 humiliate the inmate, violates the Eighth Amendment.” Crawford v. Cuomo, 796 F.3d 252, 17 257 (2nd Cir. 2015). “[S]exual contact between a prisoner and a prison guard serves no 18 legitimate role and ‘is simply not part of the penalty that criminal offenders pay for their 19 offenses against society.’” Wood, 692 F.3d at 1050 (quoting Farmer, 511 U.S. at 834) (some 20 internal quotation marks omitted). “Where there is no legitimate penological purpose for a 21 prison official's conduct, courts have ‘presum[ed] malicious and sadistic intent.’” 22 (alteration in original) (quoting Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 23 1999)). See also M.N. v. Morgan Hill Unified School District, 20 Cal.App.5th 607 (2018) 24 (“Misdemeanor sexual battery is defined as follows: (1) Any person who touches an intimate 25 part of another person, if the touching is against the will of the person touched, and is for the 26 specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of 27 misdemeanor sexual battery”). 28 Id. Because Plaintiff does not allege facts showing that Defendant G. Rodriguez acted for 7 1 sexual arousal or sexual gratification, and because there appears to have been a legitimate 2 penological purpose for the touching, the Court finds that Plaintiff’s allegations do not establish 3 a claim for sexual assault (or sexual battery). 4 C. Unreasonable Search and Seizure 5 The Fourth Amendment guarantees “[t]he right of the people to be secure ... against 6 unreasonable searches and seizures.” This right extends to incarcerated prisoners; however, the 7 reasonableness of a particular search is determined by reference to the prison context. In Bell 8 v. Wolfish, 441 U.S. 520, 558 (1979), the Supreme Court set forth a balancing test for 9 determining a search's reasonableness: 13 The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. 14 Id. at 559 (emphasis added). The Ninth Circuit has also explained that “not all strip 15 search procedures will be reasonable; some could be excessive, vindictive, harassing, or 16 unrelated to any legitimate penological interest.” Michenfelder v. Sumner, 860 F.2d 328, 332 17 (9th Cir. 1988). 10 11 12 18 Moreover, the Ninth Circuit has stated that “digital rectal searches are one of the most 19 intrusive methods of detecting contraband.” Tribble v. Gardner, 860 F.2d 321, 325–326 (9th 20 Cir. 1988). 21 preventing the introduction of contraband. The Ninth Circuit has explained that “the Fourth 22 Amendment requires that rectal searches in prisons be conducted with reasonable cause and in 23 a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 24 (1979). A violation of the Fourth Amendment may be predicated on a finding either that cause 25 was lacking or that the search was conducted in an unreasonable manner.” Vaughan v. Ricketts 26 950 F.2d 1464, 1468–69 (9th Cir. 1991). See also Cramer v. Dickinson, 2008 WL 1925001, at 27 *3–4 (E.D.C.A. Apr. 29, 2008) (“While plaintiff indicates that C.O. Dickinson strip searched 28 her and that Nurse Johnson performed a digital rectal search, plaintiff fails to state the manner They may nevertheless be reasonable if done for the legitimate purpose of 8 1 in which either search was conducted, the justification for initiating either search, and the 2 place(s) where the searches were conducted. Based on plaintiff's allegations, a strip search and 3 a digital rectal search of a prisoner believed to possess contraband is not unreasonable and does 4 not rise to the level of a constitutional violation.”). 5 Here, Plaintiff alleges that the search was conducted “in front of numerous inmates and 6 other correctional officers,” and that “Plaintiff was already handcuffed, being escorted, hence, 7 there was no chance to get rid of any evidence.” Although Plaintiff does not describe why 8 Defendant G. Rodriguez did the search, he alleges that Defendant G. Rodriguez did find 9 something in Plaintiff’s buttocks, which Plaintiff describes as “alleged contraband.” This 10 search also occurred, allegedly, after Defendant G. Rodriguez pushed Plaintiff against a wall, 11 used vulgarity, and lifted Plaintiff’s arms behind him, as discussed above. 12 Ultimately the Court recommends allowing a claim to proceed against Defendant G. 13 Rodriguez for a violation of the Fourth Amendment for an unreasonable search. The law 14 allows prison officers to perform digital searches for cause in a reasonable manner. Although 15 the cause is not described here, Plaintiff concedes that the search revealed something that was 16 “allegedly” contraband. It is very likely therefore that there was sufficient cause. However, 17 Plaintiff states a claim that the search was done in an unreasonable manner in front of inmates, 18 without justification. The Court is not determining that the facts as Plaintiff described would 19 constitute an unconstitutional search—rather, at this stage of the proceedings, and given the 20 fact-intensive inquiry needed to assess the reasonableness of this search, the Court recommends 21 finding that Plaintiff may proceed on his Fourth Amendment claim. 22 D. Failure to Protect 23 Prison officials have a duty to take reasonable steps to protect inmates from physical 24 abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982); Farmer, 511 U.S. at 833. 25 Liability exists only when two requirements are met: (1) objectively, the prisoner was 26 incarcerated under conditions presenting a substantial risk of serious harm; and (2) 27 subjectively, prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837. 28 The very obviousness of the risk may suffice to establish the knowledge element. See Wallis v. 9 1 Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if 2 evidence is presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844. 3 The knowledge element does not require that the plaintiff prove that prison officials know for a 4 certainty that the inmate’s safety is in danger, but it requires proof of more than a mere 5 suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the 6 plaintiff must show that prison officials disregarded a risk. 7 actually knew of a substantial risk, they are not liable if they took reasonable steps to respond 8 to the risk, even if harm ultimately was not averted. See Farmer, 511 U.S. at 844. Thus, where prison officials 9 Plaintiff claims that Defendant M. Venegas failed to intervene to stop the body cavity 10 search. This does not describe a constitutional claim. A defendant is not liable for failing to 11 prevent an unconstitutional search by another person. Rather, the law regarding failure to 12 protect involves knowing that an inmate’s safety is in danger with the ability to stop that 13 physical danger. Plaintiff does not allege that Defendant V. Venegas failed to protect him with 14 regards to G. Rodriguez allegedly unprovoked attack prior to the search. 15 Venegas is not liable for failure to stop a search, which Plaintiff alleges to be unreasonable. 16 That search may have violated Plaintiff’s Fourth Amendment rights, but it is not the sort of 17 safety risk addressed in an Eighth Amendment failure to protect claim. 18 Defendant V. E. Medical Care 19 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 20 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 21 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 22 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 23 prisoner’s condition could result in further significant injury or the unnecessary and wanton 24 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 25 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 26 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 27 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 28 Deliberate indifference is established only where the defendant subjectively “knows of 10 1 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 2 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 3 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 4 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 5 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 6 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 7 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 8 836-37 & n.5 (1994) (citations omitted). 9 Plaintiff alleges that he notified defendant E. Venegas numerous times of the chronic 10 pain to his right shoulder, wrist, and rectum but his complaints were ignored. He also claims 11 that Defendants J. Cronjager, E. Rivera and E. Venegas failed to establish adequate procedures 12 for providing medical care, including treatment, supervision or control of subordinates. 13 The Court finds that Plaintiff’s allegations are insufficient to state a claim for deliberate 14 indifference to serious medical needs. His allegations are very brief and amount to saying that 15 he told a correctional officer he was hurt after a search, but was ignored. Defendant M. 16 Venegas is a correctional sergeant. 17 allegations that he was the person who should have provided medical care. Plaintiff does not 18 allege he submitted any formal requests for medical care. 19 complained to Defendant Venegas. Moreover, it is unclear what medical care he needed at that 20 moment and how a failure to get that medical care caused him injury. Merely being in pain is 21 insufficient to establish this element. The allegations against Defendant Venegas also do not 22 establish deliberate indifference under the law. It appears that Defendant Venegas ignored 23 Plaintiff’s complaints of pain, but that allegation is not sufficient to show that Defendant 24 Venegas subjectively knew that Plaintiff had a serious need for medical care that Defendant 25 Venegas could have addressed, but did not. 26 He is not a medical professional and there are no He merely alleges that he F. Retaliation 27 There are five basic elements to a First Amendment retaliation claim: (1) An assertion 28 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's 11 1 protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment 2 rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. 3 Robinson, 408 F.3d 559, 567–68 (9th Cir.2005). “A prisoner suing prison officials under 4 section 1983 for retaliation must allege that he was retaliated against for exercising his 5 constitutional rights and that the retaliatory action does not advance legitimate penological 6 goals, such as preserving institutional order and discipline. Rizzo v. Dawson, 778 F.2d 527, 7 532 (9th Cir.1985).” Barnett v. Centoni, 31 F.3d 813, 815–16 (9th Cir. 1994). 8 Plaintiff appears to allege that Defendant G. Rodriguez seized his property including 9 “all reading material, material and supplies necessary for access to courts, and personal hygiene 10 articles,” the day after the events described above and after Plaintiff complained about G. 11 Rodriguez to his supervisors. There are no allegations about anything Defendant G. Rodriguez 12 said to link the taking to Plaintiff’s complaints. 13 The Court recommends allowing a claim for retaliation in violation of the First 14 Amendment to proceed against Defendant G. Rodriguez. The Court acknowledges that the 15 allegations are very brief and largely conclusory. That said, the allegation that Defendant G. 16 Rodriguez took an adverse action the day after the altercation and complaint, combined with 17 the fact that there does not appear to be a legitimate penological interest in taking Plaintiff’s 18 property, especially his material needed for access to the courts, is sufficient for the claim to 19 proceed at this early stage. 20 G. Conditions of Confinement 21 “It is undisputed that the treatment a prisoner receives in prison and the conditions 22 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 23 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 24 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 25 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 26 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 27 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 28 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 12 1 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 2 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 3 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other 4 grounds by Sandin v. Conner, 515 U.S. 472 (1995); Wright v. Rushen, 642 F.2d 1129, 1132-33 5 (9th Cir. 1981). 6 When determining whether the conditions of confinement meet the objective prong of 7 the Eighth Amendment analysis, the Court must analyze each condition separately to determine 8 whether that specific condition violates the Eighth Amendment. See Toussaint, 801 F.2d at 9 1107; Hoptowit, 682 F.2d at 1246-47; Wright, 642 F.2d at 1133. “Some conditions of 10 confinement may establish an Eighth Amendment violation 'in combination' when each would 11 not do so alone, but only when they have a mutually enforcing effect that produces the 12 deprivation of a single, identifiable human need such as food, warmth, or exercise – for 13 example, a low cell temperature at night combined with a failure to issue blankets.” Wilson v. 14 Seiter, 501 U.S. 294, 304 (1991); see also Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 15 2010); Osolinski, 92 F.3d at 938-39; Toussaint, 801 F.2d at 1107; Wright, 642 F.2d at 1133. 16 When considering the conditions of confinement, the Court should also consider the amount of 17 time to which the prisoner was subjected to the condition. See Hutto v. Finney, 437 U.S. 678, 18 686-87 (1978); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005); Hoptowit, 682 F.2d at 19 1258. As to the subjective prong of the Eighth Amendment analysis, prisoners must establish 20 prison officials' “deliberate indifference” to unconstitutional conditions of confinement to 21 establish an Eighth Amendment violation. See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 22 303. 23 Plaintiff alleges that “cumulative effect of deprivation of good medical care, and other 24 crushing conditions of incarceration at Wasco State Prison-Reception Center, constitute a 25 serious deprivation of at least one basic human need, including but not limited to mental and 26 physical health.” He includes other similar conclusory allegations about the lack of human 27 dignity and overall poor conditions at the facility. 28 These allegations are insufficient to state a claim under the legal standards above. 13 1 Plaintiff does not include any details about how he is deprived of basic human needs. The 2 allegations are conclusory, without supporting facts. Moreover, Plaintiff has not made any 3 allegations that a specific person acted with deliberate indifference in subjecting him to 4 unconstitutional conditions of confinement. 5 A. Supervisory Liability 6 The allegations against Defendants Cronjager, Rivera, and Venegas for failure to train 7 and failure establish adequate procedures, and against Defendant Cronjager for failure to take 8 disciplinary actions against Defendants G. Rodriguez and Venegas, are insufficient to establish 9 a claim against Defendants Cronjager, Rivera, and Venegas. Supervisory personnel are 10 generally not liable under section 1983 for the actions of their employees under a theory 11 of respondeat superior and, therefore, when a named defendant holds a supervisory position, 12 the causal link between him and the claimed constitutional violation must be specifically 13 alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher 14 v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under section 15 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would 16 support a claim that the supervisory defendants either: personally participated in the alleged 17 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 18 promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of 19 constitutional rights' and is ‘the moving force of the constitutional violation.’” Hansen v. 20 Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 21 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable 22 action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence 23 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 24 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 25 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted). 26 Plaintiff does not make any specific allegations about the policies or training at the 27 institution, how they were insufficient, and how those policies ultimately caused a violation of 28 his constitutional rights. Other than Plaintiff’s conclusory allegations, there does not appear to 14 1 be any connection between these defendants and the alleged excessive force, strip search, and 2 denial of medical care. 3 4 The Court does not find a claim for negligence against these defendants for the same reason. 5 IV. CONCLUSION AND ORDER 6 The Court has screened Plaintiff’s First Amended Complaint and finds that it states 7 cognizable claims Defendant G. Rodriguez, Correctional Officer of Wasco State Prison 8 Reception Center as of October 2016, for excessive force in violation of the Eighth 9 Amendment, for an unreasonable search in violation of the Fourth Amendment, for retaliation 10 in violation of the First Amendment, for assault, and for battery. However, the Court finds that 11 the First Amended Complaint states no other cognizable claims. 12 The Court will not recommend granting further leave to amend. This is Plaintiff’s First 13 Amended Complaint, and the Court has already provided ample legal guidance when it 14 reviewed Plaintiff’s original complaint. 15 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that this case 16 proceed against Defendant G. Rodriguez on Plaintiff’s claims for excessive force in violation of 17 the Eighth Amendment, for an unreasonable search in violation of the Fourth Amendment, for 18 retaliation in violation of the First Amendment, for assault, and for battery, and that all other 19 claims and defendants be dismissed with prejudice. 20 These findings and recommendations will be submitted to the United States district 21 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 23 may file written objections with the Court. The document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” 25 /// 26 /// 27 /// 28 /// 15 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: March 28, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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