(PC) Brookins v. Hernandez et al, No. 1:2017cv01675 - Document 13 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Certain Defendants be Dismissed from the Action for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 6/15/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LEE BROOKINS, 12 Plaintiff, 13 14 v. M. HERNANDEZ, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-01675-AWI-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT CERTAIN DEFENDANTS BE DISMISSED FROM THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 12] Plaintiff Barry Lee Brookins is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s first amended complaint, filed May 21, 2018. 19 20 I. 21 SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 24 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 25 or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks monetary relief 26 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 /// 28 /// 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader is 2 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 6 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 7 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 8 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally 9 construed and to have any doubt resolved in their favor, but the pleading standard is now higher, 10 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, 11 Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court 12 to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 13 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a 14 defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a 15 defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 16 572 F.3d at 969. 17 II. 18 COMPLAINT ALLEGATIONS 19 Plaintiff names the following fifteen prison officials as Defendants: Officer M. Hernandez, 20 Lieutenant E. Williams, Lieutenant C. Livingston, A.O.D. S. Marsh, Associate Warden T.P. Wan, 21 Officer L. Sanchez, Officer Galvenson, Officer Schleesman, Sergeant Crane, Sergeant Salvado, 22 Captain A. Williams, Chief Office of Appeals M. Voong, Appeals Examiner D. Foston, Warden S. 23 Sherman, and Lieutenant N. Scaife. 24 On February 19, 2017, M. Hernandez approached Plaintiff’s cell and requested that he strip 25 search. Plaintiff complied and stripped down to his boxer shorts and told Hernandez that he would not 26 be able to bend, squat or pull his buttocks apart because he wears a full body back brace. Plaintiff also 27 had a medical chrono which prohibited him from bending, squatting, lifting more than 10 pounds, and 28 no behind back handcuffs. Officer Hernandez was not satisfied with the results even though he was 2 1 aware that Plaintiff could not perform the tasks requested. Plaintiff was handcuffed and escorted to C- 2 facility clinic. Once Plaintiff was in the housing tank, he informed Licensed Vocational Nurses 3 Martinez and Sami that he was unable to perform the strip search as requested by Martinez due to his 4 medical issues. Sami asked if Plaintiff was suspected to have contraband on him, and Plaintiff stated 5 no. 6 On this same date, Lieutenant E. Williams requested that Plaintiff strip search again, and 7 Plaintiff complied “all the way down to [his] boxer shorts” and stated he would “not be able to bend, 8 squat & spread my buttocks apart, I’ve been through the metal detectors, hand wands & they’ve been 9 negative. If you think I have something on me take me to be x-rayed they’ve done it everywhere else 10 I’ve been under the circumstances either at CTC or F&R [due] to my medical condition.” Williams 11 stated the x-ray technician was off and release and receiving had no one working, so if Plaintiff 12 cooperated with him by removing his boxer shorts, bent over and spread his buttocks, he would 13 dismiss the rules violation report of delaying staff and return him to his cell. Plaintiff again stated that 14 he could not perform the tasks because of his medical condition as detailed in the medical chrono. 15 Lieutenant Williams had Officer Hernandez hand wand him again which was negative but Williams 16 decided to send Plaintiff to the Administrative Security Unit (ASU) contraband watch for weapons 17 inspection. Plaintiff remained on contraband watch for three days, while handcuffed and in leg irons 18 with bright lights on 24 hours a day. 19 After the third day on contraband watch, on February 21, 2017, Captain A. Williams arrived at 20 the ASU and Plaintiff was taken for x-rays and cleared and released back to general population. 21 Plaintiff submits that this same decision could have been made by Captain Williams three days earlier. 22 While Plaintiff was on contraband watch he asked several officers to turn off the bright light in 23 his cell because he was unable to sleep. When Plaintiff asked Officer L. Sanchez to turn off the light, 24 he stated that maintenance had to repair it because it was broken and would not turn off. When 25 Plaintiff asked Officer Galvenson to turn off the light he stated that “they wanted him to leave it on.” 26 When Plaintiff asked Officer Schleesman to turn off the light he said he would check with someone 27 and later told him no. When Plaintiff asked Sergeant Crane he stated, “that the light had to be fixed.” 28 When Plaintiff asked Sergeant Salvado to turn off the light he received the same negative responses. 3 1 Lieutenant C. Livingston interviewed Plaintiff regarding his inmate appeal filed regarding the 2 circumstances surrounding his contraband surveillance watch. Plaintiff informed Livingston that he 3 did not wish to withdraw the appeal, and the appeal was denied. S. Marsh upheld the decision that 4 there was no misconduct and that staff did not violate CDCR state policy. 5 6 On July 3, 2017, N. Scaife upheld the decision that no misconduct by staff or policy had been violated and signed off on it. 7 On July 7, 2017, Warden S. Sherman also signed off on the inmate appeal. 8 Chief of Appeals M. Voong and Appeals Examiner D. Foston were afforded the opportunity to 9 10 11 12 13 correct the matter and failed to do so when the appeal was denied at the third level of review on December 4, 2017. Plaintiff contends that Associate Warden T.P. Wan is liable for the acts of his subordinates through the chain of command. Plaintiff seeks compensatory damages as relief. 14 III. 15 DISCUSSION 16 A. Cruel and Unusual Punishment 17 The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners 18 not only from inhumane methods of punishment but also from inhumane conditions of confinement. 19 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 20 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted). While 21 conditions of confinement may be, and often are, restrictive and harsh, they must not involve the 22 wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) 23 (quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose or 24 contrary to evolving standards of decency that mark the progress of a maturing society violate the 25 Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. 26 Pelzer, 536 U.S. 730, 7378 (2002); Rhodes, 452 U.S. at 346. 27 28 Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 4 1 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in 2 prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To 3 maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately 4 indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 847; Thomas v. 5 Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 6 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th 7 Cir. 1998). Plaintiff contends that on February 19, 2017, Defendant Hernandez ordered him to strip naked, 8 9 squat, bend over at the waist, and pull his buttocks apart. Although Plaintiff stripped down to his 10 boxers, he was not able to comply with the further requests due to his back brace and a permanent 11 medical chrono which restricts him from bending, back handcuffs, and lifting more than 10 lbs. 12 Despite clearing a metal detector test and being denied an x-ray examination, Plaintiff was then sent to 13 the administrative segregation unit and placed on contraband watch wearing handcuffs and leg 14 restraints, and subjected to 24-hour bright lights for three days. Viewing Plaintiff’s allegations 15 liberally, Plaintiff states a cognizable claim for cruel and unusual punishment against Defendants 16 Officer M Hernandez, Lieutenant E. Williams, Captain Williams, Officer L. Sanchez, Officer 17 Galvenson, Officer Schleesman, Sergeant Crane, and Sergeant Salvado. 18 B. Inmate Appeal Process 19 Plaintiff seeks to hold officials liable based on their decision of his inmate appeals. 20 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of 21 life, liberty, or property; and those who seek to invoke its procedural protection must establish that one 22 of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not have 23 a protected liberty interest in the processing his appeals, and therefore, he cannot pursue a claim for 24 denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 25 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 26 /// 27 /// 28 /// 5 Defendants Livingston, Scaife, Sherman, Voong, Foston and Wan were involved in reviewing 1 2 and deciding Plaintiff’s inmate appeals challenging his placement in administrative segregation. As 3 Plaintiff was previously informed, he does not have a protected liberty interest in the appeals process, 4 and Defendants’ involvement in reviewing and denying his appeals provides no basis for imposition of 5 liability under section 1983. Ramirez, 334 F.3d at 860. Defendants were not directly involved in the 6 alleged past violation of Plaintiff’s right against cruel and unusual punishment, and their decision to 7 deny his appeal during the administrative review process does not subject them to liability for the 8 underlying violation allegedly committed by other prison officials. Accordingly, Plaintiff fails to state 9 a cognizable claim against Defendants Livingston, Scaife, Sherman, Voong, Foston and Wan, and 10 these Defendants should be dismissed, without further leave to amend.1 11 IV. 12 RECOMMENDATIONS 13 Based on the foregoing, it is HEREBY RECOMMENDED that: 14 1. This action proceed on Plaintiff’s cruel and unusual punishment claim against 15 Defendants Officer M Hernandez, Lieutenant E. Williams, Captain Williams, Officer L. Sanchez, 16 Officer Galvenson, Officer Schleesman, Sergeant Crane, and Sergeant Salvado; and 2. 17 18 Defendants Livingston, Scaife, Sherman, Voong, Foston and Wan be dismissed from the action for failure to state a cognizable claim for relief. These Findings and Recommendations will be submitted to the United States District Judge 19 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 21 days after being served with these Findings and Recommendations, Plaintiff may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 24 25 26 27 28 1 Based upon the allegations in Plaintiff’s original and first amended complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would support a cognizable claim against these Defendants, and further amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend when amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). 6 1 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 2 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 June 15, 2018 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 7