(PC) Cato v. Darst, et al., No. 2:2014cv00959 - Document 32 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/23/15 RECOMMENDING that plaintiffs request to file an amended complaint 26 be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CATO, 12 13 14 No. 2: 14-cv-0959 TLN KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS M. DARST, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint filed January 5, 19 2015. (ECF No. 26.) For the reasons stated herein, plaintiff’s request for leave to file the 20 amended complaint should be denied. 21 Discussion 22 Original Complaint 23 On April 18, 2014 plaintiff filed the original complaint. (ECF No. 1.) Named as 24 defendants were High Desert State Prison (“HDSP”) Correctional Officers Darst and Romero. 25 (Id. at 2.) Plaintiff alleged that in March 2013, he was housed in administrative segregation (“ad 26 seg”). (Id. at 3.) Plaintiff alleged that on March 6, 2013, defendant Darst threw a hot food tray at 27 plaintiff, causing plaintiff to suffer pain. (Id.) Plaintiff alleged that on March 7, 2013, defendant 28 Romero threw a hot food tray at plaintiff, causing plaintiff to suffer pain. (Id. at 4.) Plaintiff 1 1 alleged that on March 8, 2013, plaintiff begged defendant Darst for food because plaintiff had not 2 received an evening meal in two days. (Id.) Defendant Darst told plaintiff that he would let him 3 eat if he cleaned up the food on his cell floor. (Id.) 4 5 On May 6, 2014, the undersigned ordered service of the original complaint on defendants Darst and Romero. (ECF No. 7.) 6 First Request for Leave to Amend 7 On July 28, 2014, plaintiff filed a motion to amend and proposed amended complaint. 8 (ECF No. 15-1.) The amended complaint included the claims made against defendants Darst and 9 Romero in the original complaint as well as claims against new defendants Hanks, Delazgarza- 10 Dillard, Snyder, Campbell, Bennett, Holley, Rainey, Shiplet and Albonico. The undersigned 11 describes those claims herein. 12 In claim one, plaintiff alleged that in December 2012, defendant Holley refused plaintiff’s 13 request to be housed with another African American inmate because defendant Holley did not 14 “cell blacks with blacks.” (Id. at 5-6.) Plaintiff alleged that defendant Holley’s refusal to house 15 him with another black inmate constituted racial discrimination in violation of the Fourteenth 16 Amendment. (Id. at 5.) 17 In claim two, plaintiff alleged that on March 5, 2013, defendant Hanks interviewed 18 plaintiff in his office regarding a group appeal plaintiff filed challenging the HDSP policy of not 19 permitting compatible inmates of the same race to be celled together. (Id. at 22-31.) Defendant 20 Delagarza-Dillard was present in defendant Hank’s office during the interview. (Id.) 21 Before he could sit down, defendant Hanks threw plaintiff’s appeal across his desk and 22 said, “What the fuck is this? Do you know where you’re at? This is High Desert. We run this 23 shit.” (Id.) Without saying a word, plaintiff left the office. (Id.) As he walked away, he heard 24 an officer say, “Don’t worry, we’ll get him.” (Id.) Plaintiff turned around and saw defendant 25 Hanks talking to defendant Delagarza-Dillard at the entrance of the office. (Id. at 8-9.) 26 About 30-40 minutes later, plaintiff was in the dayroom with his radio, which he had had 27 for years. (Id. at 9.) Plaintiff put his radio on a table. (Id.) Defendant Delagarza-Dillard and 28 Campbell walked up to the table. (Id.) Defendant Delagarza-Dillard picked up the radio, said it 2 1 2 was altered, and walked away with it. (Id.) Plaintiff later told defendant Delagarza-Dillard that he had had the radio for years. (Id.) 3 Plaintiff went to his cell and retrieved all of his property receipts. (Id.) He brought the receipts to 4 the officer’s unit and gave them to Delagarza-Dillard. (Id.) When plaintiff sat down in a chair, 5 he noticed that more officers had arrived and had formed a half circle around him. (Id.) Fearing 6 for his safety, plaintiff started to walk away. (Id. at 9-10.) Plaintiff then heard defendant 7 Delagarza-Dillard say, “get him.” (Id. at 9.) Plaintiff was then tackled to the ground. (Id.) 8 Plaintiff did not resist. (Id.) Plaintiff was choked, kneed in the back and ribs, and struck 9 repeatedly with a baton in the buttocks area and lower leg area. (Id.) The officers involved in the 10 assault were later identified as defendants Delazgarza-Dillard, Campbell, Snyder, Bennett and 11 Rainey. (Id.) 12 Claim three included the original claims against defendants Darst and Romero. 13 In claim four, plaintiff alleged that on July 25, 2013, a rules violation report was ordered 14 reheard because plaintiff’s requested witnesses were not questioned. (Id. at 14.) Defendant 15 Shiplet was plaintiff’s assigned investigative employee for the rehearing. (Id.) Because plaintiff 16 did not know the names of his witnesses, he asked defendant Shiplet to interview inmates housed 17 in four particular cells. (Id.) Defendant Shiplet failed to interview these inmates. (Id. at 14-15.) 18 At the September 4, 2013 disciplinary re-hearing, defendant Albonico refused plaintiff’s 19 request to call the inmate witnesses he had identified to defendant Shiplet. (Id. at 15.) Plaintiff 20 alleged that defendants Shiplet and Albonico violated his right to due process. (Id.) Plaintiff did 21 not describe the disciplinary charges that were ordered reheard. Plaintiff also did not describe the 22 testimony of his proposed witnesses and how it related to the pending charges. 23 24 25 26 27 28 On September 19, 2014, the undersigned recommended that plaintiff’s request to file the amended complaint be denied for the reasons stated herein: Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed.R.Civ.P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the same transaction or 3 1 occurrence, or series of transactions and occurrences, and (2) there are commons questions of law or fact. Fed.R.Civ.P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Ins. Co. of North America, 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the court review the other claims to determine if they may be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. 2 3 4 5 Plaintiff’s proposed new claims, i.e., claims 1, 2 and 4, are unrelated to the original claims brought against defendants Darst and Romero. Plaintiff originally alleged that defendants Darst and Romero violated the Eighth Amendment by throwing hot food on him. Plaintiff’s claims alleging racially discriminatory housing, i.e., claims 1 and 2, are unrelated to the claims against defendants Darst and Romero and involve different defendants. Claim 4, alleging due process violations during a prison disciplinary proceeding, also involves different defendants and is unrelated to the original claims against defendants Darst and Romero. For these reasons, plaintiff’s motion for leave to amend should be denied. 6 7 8 9 10 11 12 13 (Id. at 4.) On October 20, 2014, plaintiff filed objections to the findings and recommendation. (ECF 14 No. 21.) In his objections, plaintiff alleged that his new claims related to his original claims 15 against defendants Darst and Romero. Plaintiff alleged that he filed his group grievance, 16 discussed in claim two, in response to the racial discrimination alleged in claim one. Plaintiff 17 alleged that after being subjected to the excessive force alleged in claim two, he was falsely 18 charged with battery on a peace office. In response to these charges, plaintiff was placed in ad 19 seg, where he alleged defendants Darst and Romero assaulted him “in retaliation.” 20 On December 12, 2014, the undersigned vacated the findings and recommendations, and 21 granted plaintiff leave to file an amended complaint clarifying his retaliation claims against 22 defendants Darst and Romero. (ECF No. 23.) In this order, the undersigned noted that plaintiff’s 23 amended complaint did not make clear that the four claims alleged were related. In this order, the 24 undersigned also observed that in his objections, plaintiff had not pled sufficient facts in support 25 of a retaliation claim against defendants Darst and Romero. (Id. at 5.) The undersigned set forth 26 the legal standard for retaliation in the December 12, 2014 order: 27 28 “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) [a]n assertion that a state actor took some adverse action against an inmate (2) because of (3) 4 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2004). Prisoners have a constitutional right to file prison grievances and pursue civil rights litigation in the courts. Id. at 567. Prison officials may not retaliate against prisoners for exercising these rights. Id. at 568. 1 2 3 4 5 6 7 (Id.) The undersigned found that in his objections, plaintiff did not describe the protected 8 conduct that allegedly motivated defendants Darst and Romero to retaliate against him. (Id.) 9 Plaintiff was advised that if he filed an amended complaint, he must allege specific facts in 10 support of a retaliation claim. (Id.) He could not base his retaliation claim on conclusory 11 allegations. (Id.) He must allege how he knew that defendants Darst and Romero were motivated 12 by retaliation. (Id.) 13 Proposed Amended Complaint filed January 5, 2015 14 In response to the December 12, 2014 order, plaintiff filed an amended complaint on 15 January 5, 2015. (ECF No. 26.) Plaintiff’s amended complaint names the same defendants as 16 were named in the amended complaint filed July 15, 2014. (Id. at 1.) 17 The allegations in the January 5, 2015 amended complaint are also the same as those in 18 the July 15, 2014 amended complaint. Claim one alleges that defendant Holly racially 19 discriminated against plaintiff by not permitting him to share a cell with another black inmate. 20 (Id. at 5-6.) Claim two alleges that on March 5, 2013, defendants Hanks and Delagarza-Dillard 21 conspired to use excessive force against plaintiff in retaliation for his filing of the administrative 22 grievance challenging the HDSP racial housing policy. (Id. at 6-7.) In claim two, plaintiff also 23 alleges that on March 5, 2013, defendants Campbell, Snyder, Bennett and Rainey used excessive 24 force against him. (Id. at 7.) In claim two, plaintiff clarified that he was falsely charged with 25 battery on a peace officer and placed in ad seg. (Id. at 10.) Claim four alleges that defendants 26 Shiplet and Albonico denied him due process at his disciplinary hearing. (Id. at 13-14.) 27 28 In claim three, plaintiff alleges that defendants Romero and Darst violated his Eighth Amendment right to be free from cruel and unusual punishment when they threw hot food trays at 5 1 him and denied him his meals. (Id. at 10-12.) In support of claim two, plaintiff alleges that he 2 was falsely charged with battery on a peace officer and placed in ad seg where “plaintiff 3 underwent further retaliation by the defendants in count three.” (Id. at 10.) In support of claim 4 three, plaintiff alleges: 5 Due to plaintiff being charged falsely for the act of battery on a peace officer plaintiff was placed in administrative segregation under supervision of correctional officers that are abusive to inmates suspected of assaulting a fellow officer. 6 7 8 9 (Id. at 11.) The grounds of plaintiff’s retaliation claim against defendants Darst and Romero are 10 unclear. Plaintiff does not identify the protected conduct he alleges defendants Darst and Romero 11 retaliated against him for engaging in. Instead, plaintiff suggests that defendants Darst and 12 Romero threw hot food on him and denied him meals because he was accused of assaulting 13 another officer, which is clearly not protected conduct. Therefore, plaintiff has not linked 14 defendants Darst and Romero with the allegations in claim two with a potentially colorable 15 retaliation claim. 16 Plaintiff may be attempting to link defendants Darst and Romero to the allegations in 17 claim two by alleging that they were motivated to violate his Eighth Amendment rights based on 18 the charges against him for assaulting another officer. However, plaintiff provides no specific 19 facts to support this claim. For example, plaintiff alleges no facts demonstrating that defendants 20 Darst or Romero knew why he was in administrative segregation. Because plaintiff’s allegations 21 linking the claims against defendant Darst and Romero with claim two, as well as the other claims 22 in the amended complaint, are conclusory, the undersigned finds that plaintiff has not pled 23 sufficient facts demonstrating a common question of law or fact with the other claims contained 24 in the proposed amended complaint. See Ashcroft v. Iqbol, 556 U.S. 662, 678 (2009) (“A claim 25 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged. The plausibility 27 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility 28 that a defendant has acted unlawfully.”); see also Jackson v. Olsen, 2010 WL 724023 at *2 (E.D. 6 1 Va. 2010) (a plaintiff cannot satisfy the requirements of Rule 20 with conclusory allegations of 2 conspiracy). 3 4 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s request to file an amended complaint (ECF No. 26) be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 objections shall be filed and served within fourteen days after service of the objections. The 11 parties are advised that failure to file objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: January 23, 2015 14 15 16 17 18 Cato959.den 19 20 21 22 23 24 25 26 27 28 7