(PC) Roe v. Davey et al, No. 1:2017cv01221 - Document 14 (E.D. Cal. 2018)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 5/16/2018. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Barbara A. McAuliffe. The new case number is 1:17-cv-01221-DAD-BAM (PC). Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL MATHEW ROE, 10 Plaintiff, 11 v. 12 DAVEY, et al., 13 Defendants. Case No. 1:17-cv-01221-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS 14 (ECF Nos. 12, 13) 15 FOURTEEN (14) DAY DEADLINE 16 17 I. Plaintiff Jose Lopez Hernandez (“Plaintiff”) is a state prisoner proceeding pro se and in 18 19 Background forma pauperis in this civil rights action under 42 U.S.C. § 1983. 20 On May 2, 2018, the Court screened Plaintiff’s complaint and found that Plaintiff stated 21 cognizable claims against Defendant Gutierez for excessive force and deliberate indifference to 22 serious medical needs in violation of the Eighth Amendment, but failed to state any other 23 cognizable claims against any other defendants. The Court ordered Plaintiff to either file a first 24 amended complaint or notify the Court of his willingness to proceed only on the cognizable 25 claims. (ECF No. 12.) On May 11, 2018, Plaintiff notified the Court that he wished to proceed 26 only on the cognizable claims against Defendant Gutierez and did not wish to file a first amended 27 complaint. (ECF No. 13.) 28 /// 1 1 II. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 7 1915(e)(2)(B)(ii). A complaint must contain “a short and plain statement of the claim showing that the 8 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 13 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 14 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 15 To survive screening, Plaintiff’s claims must be facially plausible, which requires 16 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 17 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 18 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 19 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 20 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 21 III. 22 Plaintiff’s Allegations Plaintiff is currently housed at R. J. Donovan Correctional Facility in San Diego, 23 California. The events in the complaint are alleged to have occurred while Plaintiff was housed at 24 Corcoran State Prison in Corcoran, California. Plaintiff names the following defendants: 25 (1) Warden Dave Davey; (2) Officer Gutierez; (3) Officer E. Moreno; (4) Sgt. Williamson; and 26 (5) Officer J. Cano. 27 28 Plaintiff’s complaint is disjointed and difficult to understand. As best as the Court can determine, Plaintiff alleges that he was on the yard on September 9, 2016, waiting to see the 2 1 doctor. Officer Cano walked over to Plaintiff and started yelling at him in front of other 2 correctional officers. Officer Gutierez used excessive force and broke Plaintiff’s hand. Plaintiff 3 was tightly cuffed and the skin on his left wrist was cut. Officer Gutierez told Plaintiff to get 4 down and prone out. He hit his alarm and Plaintiff heard him say that it was not a serious 5 problem. It reportedly took 72 hours to take Plaintiff out to the hospital and his hand was broken 6 all the way to the bone by the handcuff. Plaintiff further alleges that Officer Gutierez pressed on 7 the handcuff and pushed Plaintiff’s left hand up in the air with both of his hands. Plaintiff had the 8 cuff on his wrist and it was hanging out of the food port. Officer Gutierez knew he broke 9 Plaintiff’s hand by pressing on the wrist. Plaintiff also alleges that he was left in the holding cell 10 without anyone checking on his swollen left wrist. The handcuff was left on for four hours. 11 When they came back, Plaintiff’s hand was swollen with blood around the cuff. Plaintiff was in 12 pain and his wrist was swollen, but they took him back to his building and put him in his cell. 13 They told him that they would send a nurse, but that never happened. Plaintiff was yelling from 14 the pain. His hand needed to be repaired by a doctor because of the injury. 15 IV. Discussion 16 A. Federal Rule of Civil Procedure 8 17 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 20 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 21 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 23 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are 24 not. Id.; see also Twombly, 550 U.S. at 556–557. Plaintiff’s complaint is short, but is difficult to understand. As discussed below, Plaintiff 25 26 appears to state cognizable claims against Defendant Gutierez, but the remainder of Plaintiff’s 27 complaint is disjointed and unclear. 28 /// 3 1 B. 2 The Civil Rights Act under which this action was filed provides: 3 5 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 7 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 8 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 9 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 4 Linkage Requirement 10 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 11 affirmative acts or omits to perform an act which he is legally required to do that causes the 12 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Plaintiff fails to link Defendants Davey, Cano, Williamson and Moreno to any deprivation 14 of his rights. Plaintiff may not simply refer to “they” or an unidentified “correctional officer.” 15 Instead, Plaintiff’s complaint must link each individually named defendant to an alleged 16 deprivation of his rights. 17 C. Supervisory Liability 18 Insofar as Plaintiff is attempting to bring suit against Defendant Davey in his supervisory 19 role as Warden, he may not do so. Liability may not be imposed on supervisory personnel for the 20 actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 21 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing 22 v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 23 (9th Cir. 2002). 24 Supervisors may be held liable only if they “participated in or directed the violations, or 25 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 26 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 27 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any 28 personal participation if the official implemented “a policy so deficient that the policy itself is a 4 1 repudiation of the constitutional rights and is the moving force of the constitutional violation.” 2 Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 3 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 4 Plaintiff must link Defendant Davey either by direct conduct in the constitutional violation 5 or by identifying a policy that was so deficient that the policy itself a repudiation of the Plaintiff’s 6 rights. 7 D. Excessive Force 8 The unnecessary and wanton infliction of pain violates the Cruel and Unusual 9 Punishments Clause of the Eighth Amendment. Hudson v.McMillian, 503 U.S. 1, 5 (1992) 10 (citations omitted). For claims arising out of the use of excessive physical force, the issue is 11 “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 12 and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing 13 Hudson, 503 U.S. at 7) (internal quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 14 1028 (9th Cir. 2013). 15 Not every malevolent touch by a prison guard gives rise to a federal cause of action. 16 Wilkins, 559 U.S. at 562 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted). Necessarily 17 excluded from constitutional recognition is the de minimis use of physical force, provided that the 18 use of force is not of a sort repugnant to the conscience of mankind. Id. (quoting Hudson, 503 19 U.S. at 9–10) (quotation marks omitted). In determining whether the use of force was wanton or 20 and unnecessary, courts may evaluate the extent of the prisoner’s injury, the need for application 21 of force, the relationship between that need and the amount of force used, the threat reasonably 22 perceived by the responsible officials, and any efforts made to temper the severity of a forceful 23 response. Hudson, 503 U.S. at 7 (quotation marks and citations omitted). 24 25 At the pleading stage, Plaintiff has stated a cognizable excessive force claim against Defendant Gutierez based on allegations that Defendant Gutierez broke Plaintiff’s left wrist. 26 E. 27 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 28 Deliberate Indifference to Serious Medical Needs punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 5 1 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate 3 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 4 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 5 wanton infliction of pain,’ ” and (2) “the defendant’s response to the need was deliberately 6 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner 7 unless the defendant “knows of and disregards an excessive risk to inmate health or safety.” 8 Farmer, 511 U.S. at 837. “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 9 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a 10 purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 11 indifference caused harm. Jett, 439 F.3d at 1096. 12 At the pleading stage, Plaintiff has stated a cognizable claim for deliberate indifference to 13 serious medical needs against Defendant Gutierez based on allegations that Defendant Gutierez 14 knew that he had broken Plaintiff’s left wrist, but did not get him any medical treatment. 15 However, Plaintiff has failed to link any other named defendant to this cause of action. 16 V. Conclusion and Recommendation Plaintiff’s complaint states cognizable claims against Defendant Gutierez for excessive 17 18 force and deliberate indifference to serious medical needs in violation of the Eighth Amendment, 19 but fails to state any other cognizable claims. 20 21 Based on the foregoing, the Clerk of the Court is HEREBY ORDERED to randomly assign a District Judge to this action. 22 Further, the Court HEREBY RECOMMENDS that: 23 1. This action proceed on Plaintiff’s complaint, filed September 12, 2017, (ECF No. 1), 24 against Defendant Gutierez for excessive force and deliberate indifference to serious 25 medical needs in violation of the Eighth Amendment; and 2. All other claims and Defendants be dismissed based on Plaintiff’s failure to state 26 27 28 claims upon which relief may be granted. /// 6 1 These Findings and Recommendation will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 6 specified time may result in the waiver of the “right to challenge the magistrate’s factual 7 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara May 16, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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