(PC) Faultry v. Saechao et al, No. 2:2018cv01850 - Document 11 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/27/18 ORDERING that this action shall proceed on 8 Amended Prisoner Civil Rights Complaint and that service of process is appropriate for defendants Saechao an d Shirley; DIRECTING plaintiff to complete and submit the attached Notice of Submission of Documents to the court with 1 completed summons & 3 Copies of the endorsed FAC; DIRECTING the clerk to send plaintiff 1 blank summons, 1 copy of the endorse d FAC, and instructions for service of process on defendants Saechao and Shirley; and DIRECTING the clerk to randomly assign a district judge. District Judge Kimberly J. Mueller added. It is further RECOMMENDED that defendants Judd, Rosewell a nd O'Brian be dismissed from this action without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:18-cv-1850-KJM-AC (PC). (Coll, A)
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(PC) Faultry v. Saechao et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES FAULTRY, 12 13 14 No. 2:18-cv-1850 AC P Plaintiff, v. ORDER and J. SAECHAO, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner at California State Prison, Los Angeles County (CSP-LAC), 19 proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 20 1983. Plaintiff challenges conditions of his prior confinement at California State Prison 21 Sacramento (CSP-SAC). By order filed August 1, 2018, this court provided plaintiff the choice 22 between (1) proceeding on the original complaint as construed by the court, or (2) submitting a 23 proposed First Amended Complaint (FAC). See ECF No. 5. Plaintiff chose to submit a proposed 24 FAC, see ECF No. 8, which the court now screens pursuant to 28 U.S.C. § 1915A. 25 For the reasons set forth below, the court finds that the FAC states cognizable claims for 26 excessive force and conspiracy against defendants Saechao and Shirley; a cognizable failure-to- 27 protect claim against Shirley; and cognizable claims for retaliation and state law battery against 28 Saechao. At plaintiff’s request, the undersigned recommends dismissal of defendants Judd, 1 Dockets.Justia.com 1 Rosewell and O’Brian from this action without prejudice. 2 II. 3 Plaintiff has expressly withdrawn his failure-to-protect claims against defendants Judd, Screening of First Amended Complaint 4 Rosewell and O’Brian, the only cognizable claims against them. See ECF No. 8 at 4. Therefore, 5 the undersigned will recommend the dismissal of these defendants from this action without 6 prejudice. 7 This court also found that the original complaint stated a failure-to-protect claim against 8 defendant Shirley, based on his facilitation of, and failure to intercede in, the excessive force used 9 against plaintiff by defendant Saechao. See ECF No. 5 at 5. This claim against Shirley remains 10 11 cognizable based on the similar allegations of the FAC. See ECF No. 8 at 5-7. Based on the legal standards and for the reasons previously set forth by this court, the 12 FAC, like the original complaint, states cognizable claims against defendant Saechao for the use 13 of excessive force in violation of the Eighth Amendment, and battery in violation of California 14 law. See ECF No. 5 at 4-5, 7. The FAC also states a cognizable excessive force claim against 15 defendant Shirley, based on his alleged “aggressive, forceful, hostile” escort of plaintiff, who was 16 restrained, to an isolated shower area, causing plaintiff to fall down, and then allegedly holding 17 plaintiff down until Saechao began beating him. ECF No. 8 at 6. Plaintiff alleges these actions 18 occurred on April 24, 2017. 19 The FAC also states a cognizable First Amendment retaliation claim against defendant 20 Saechao, based on the allegations that Saechao used excessive force against plaintiff in retaliation 21 for an inmate appeal plaintiff submitted two weeks before alleging that Saechao was beating up 22 prisoners with mental health issues. Plaintiff has now submitted a copy of the subject inmate 23 appeal, dated April 16, 2017, in which Saechao’s name is variously spelled “Say Choy” and “Say 24 Chow.” ECF No. 8 at 10. This evidence, together with plaintiff’s allegations that Saechao 25 repeatedly called him a “snitch” while hitting and kicking him, id. at 7, meets the legal standards 26 for stating a retaliation claim of which the court previously informed plaintiff, ECF No. 5 at 5-7. 27 28 Finally, the FAC states a cognizable claim against defendants Saechao and Shirley for conspiracy to violate plaintiff’s constitutional rights. A conspiracy claim made pursuant to 2 1 Section 1983 requires allegations of “an agreement or meeting of the minds to violate 2 constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (citation and internal 3 quotation marks omitted), as well as an “actual deprivation of constitutional rights resulting from 4 the alleged conspiracy,” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (citation and internal 5 quotation marks omitted). “To be liable, each participant in the conspiracy need not know the 6 exact details of the plan, but each participant must at least share the common objective of the 7 conspiracy.” Franklin, 312 F.3d at 441 (citation and internal quotation marks omitted). To state a 8 cognizable conspiracy claim, plaintiff must show “that the defendants conspired or acted jointly 9 or in concert and that some overt act must have been done in furtherance of the conspiracy.” 10 Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974) (citation omitted). 11 The alleged agreement and common objective between defendants is supported by 12 plaintiff’s allegations that, inter alia, Shirley aggressively escorted plaintiff to an isolated area that 13 was “off limits . . . due to construction,” a “blind spot,” then told plaintiff while pinning him to 14 the ground, “Don’t move. Don’t fucking move. You know what’s up.” ECF No. 8 at 5-6. 15 Shirley then allegedly told Saechao, “Do your thing.” Id. at 6. Saechao then straddled plaintiff 16 and beat him “for an extended period of time,” while calling him a snitch. Id. at 6-7. Defendant 17 Shirley was allegedly present the entire time. Id. at 7. Plaintiff plausibly alleges that these overt 18 acts were in furtherance of defendants’ conspiracy to physically harm plaintiff. 19 In summary, the FAC states cognizable claims for excessive force and conspiracy against 20 defendants Saechao and Shirley; cognizable claims for retaliation and state law battery against 21 defendant Saechao; and a cognizable failure-to-protect claim against defendant Shirley. The 22 undersigned will recommend, at plaintiff’s request, the dismissal of defendants Judd, Rosewell 23 and O’Brian. 24 III. 25 In response to the court’s prior instructions, plaintiff has submitted two completed USM Additional Materials Plaintiff Must Submit 26 285 forms, one each for defendants Saechao and Shirley. Plaintiff must also submit a completed 27 summons form that names both defendants and three copies of the FAC. Once all materials have 28 been received, the court will direct the United States Marshal to serve process of the FAC on 3 1 defendants Saechao and Shirley. 2 IV. 3 Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that: 4 1. This action shall proceed on the First Amended Complaint (FAC), ECF No. 8. 5 2. Service of process is appropriate for defendants Saechao and Shirley. 6 3. The Clerk of Court is directed to send plaintiff, together with a copy of this order, the Conclusion 7 following: (1) one blank summons; (2) one copy of the endorsed FAC; and (3) instructions for 8 service of process on defendants Saechao and Shirley.1 9 4. Within thirty (30) days after service of this order, plaintiff shall complete the attached 10 Notice of Submission of Documents and submit the following documents to the court: 11 a. The completed Notice of Submission of Documents; 12 b. One completed summons; and 13 c. Three copies of the endorsed FAC (the Marshal will retain one copy). 14 5. Plaintiff shall not attempt service on any defendant or request a waiver of service. 15 Upon receipt of the above-described documents, the court will direct the United States Marshal to 16 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 17 of costs. 18 19 6. Failure of plaintiff to timely comply with this order will result in a recommendation that this action be dismissed without prejudice. 20 7. The Clerk of the Court randomly assign a district judge to this action. 21 Further, for the reasons set forth above, IT IS HEREBY RECOMMENDED that 22 previously-named defendants Judd, Rosewell and O’Brian be dismissed from this action without 23 prejudice. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with these findings and recommendations, plaintiff may file written 27 28 1 Plaintiff has already submitted the USM 285 forms for defendants Saechao and Shirley. 4 1 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 DATED: November 27, 2018 6 7 8 9 . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES FAULTRY, 12 No. 2:18-cv-1850 AC P Plaintiff, 13 v. 14 NOTICE OF SUBMISSION J. SAECHAO, et al., 15 Defendants. 16 In compliance with the court’s order filed ___________________, plaintiff submits the 17 18 following documents:1 19 ________ One (1) completed summons form ________ Three (3) copies of the endorsed FAC 20 21 22 23 24 ____________________________________ Date ____________________________________ Plaintiff 25 26 27 28 1 Plaintiff has already submitted the USM 285 forms for defendants Saechao and Shirley. 1