Jones v. Evans et al, No. 4:2007cv04277 - Document 98 (N.D. Cal. 2011)
Court Description: ORDER Granting 85 MOTION to Dismiss. Signed by Judge Claudia Wilken on 3/31/2011. (ndr, COURT STAFF) (Filed on 3/31/2011)
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Jones v. Evans et al Doc. 98 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States District Court For the Northern District of California 12 v. (Docket nos. 83, 85) M. EVANS, et al., Defendants. 13 14 17 18 / No. C 09-3003 CW (PR) MALIK JONES, ORDER REVIEWING SECOND AMENDED COMPLAINT; DISMISSING ALL CLAIMS AGAINST DEFENDANT P. BROWN; REQUIRING SERVICE ON DEFENDANTS E. RAMIREZ AND B. BROWN; ADDRESSING PLAINTIFF'S MOTION; AND ALLOWING FURTHER BRIEFING ON DEFENDANTS' MOTION TO DISMISS Plaintiff, 15 16 ORDER GRANTING DEFENDANT BAILEY'S MOTION TO DISMISS Plaintiff, 10 11 No. C 07-4277 CW (PR) MALIK JONES, v. L. WASHINGTON, et al., Defendants. 19 20 21 22 23 24 25 26 27 28 / (Docket no. 36) INTRODUCTION Plaintiff Malik Jones, a state prisoner currently incarcerated at High Desert State Prison (HDSP), filed this pro se civil rights complaint in Case no. C 07-4277 CW (PR) pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights while incarcerated at Salinas Valley State Prison (SVSP). On September 19, 2008, the Court found cognizable Plaintiff's Eighth Amendment claims for excessive force and deliberate indifference to his Dockets.Justia.com 1 safety against Defendant SVSP Correctional Officer Bailey. 2 Court also found cognizable Plaintiff's Eighth Amendment claims for 3 excessive force and deliberate indifference to his serious medical 4 needs against Defendants SVSP Transportation Sergeant L. Washington 5 and SVSP Transportation Officers D. Lang and E. Contreras.1 6 Court dismissed Plaintiff's Eighth Amendment claim for deliberate 7 indifference to safety against Defendants Washington, Lang and 8 Contreras with leave to amend. 9 Eighth Amendment claims against Defendant Jane Doe without The The The Court dismissed Plaintiff's United States District Court For the Northern District of California 10 prejudice to filing an amended complaint to add her as a named 11 defendant once he learns her identity. 12 On February 16, 2009, Defendants Bailey, Washington, Contreras 13 and Lang filed a motion to dismiss, arguing that Plaintiff had not 14 complied with Federal Rules of Civil Procedure 18(a) and 20(a) 15 because he asserted unrelated claims against multiple Defendants. 16 On June 3, 2009, Plaintiff filed a motion entitled, "Motion 17 for leave to file an Amendant [sic] Complaint" in Case no. C 07- 18 4277 CW (PR), in which he identified Defendant Jane Doe as 19 Defendant P. Brown. 20 In an Order dated July 2, 2009, the Court partially granted 21 Defendants’ motion to dismiss and severed the claims against 22 Defendants Washington, Lang, Contreras and P. Brown, assigning to 23 them a new case number: C 09-3003 CW (PR). 24 Plaintiff's motion to amend, and directed the Clerk of the Court to 25 substitute Defendant P. Brown for Defendant Jane Doe, but to do so The Court also granted 26 27 28 1 Defendant Contreras's name was initially misspelled as "Contrazs" in Plaintiff's original complaint and the Order of Service. However, the correct spelling is "Contreras." (Defs'. Answer at 1.) 2 1 in Case no. C 09-3003 CW (PR). 2 Defendant Bailey remained in Case no. C 07-4277 CW (PR). 3 Meanwhile, the claims against The Court directed the Clerk of the Court to file in Case no. 4 C 09-3003 CW (PR) copies of the "Motion for leave to file an 5 Amendant [sic] Complaint" and the original complaint. 6 On July 22, 2009, Plaintiff filed a second amended complaint 7 (docket no. 46 in Case no. C 07-4277 CW (PR)), involving claims in 8 Case no. C 09-3003 CW (PR). 9 amended complaint as of right, see Fed. R. Civ. P. 15(a), and did Plaintiff could not file this second United States District Court For the Northern District of California 10 not move for leave to amend to file it. 11 filing to be a motion for leave to amend. 12 claims in Case no. C 09-3003 CW (PR), it will be considered in that 13 case. 14 below. 15 The Court will deem his Because it is related to The Court will address the proposed second amended complaint Before the Court in Case no. C 07-4277 CW (PR) are Defendant 16 Bailey's motion to dismiss for failure to exhaust administrative 17 remedies, and his motion for summary judgment under Federal Rule of 18 Civil Procedure 56(c) for Plaintiff's failure to initiate this 19 action before the statute of limitations ran on his claims. 20 Plaintiff filed an opposition, and Defendant Bailey filed his reply 21 to the opposition. 22 Also before the Court is Plaintiff's "Supplemental Motion to 23 Add Information" in connection with his deposition held October 7, 24 2010, filed in both Case nos. C 07-4277 CW (PR) and C 09-3003 CW 25 (PR). 26 Finally, before the Court in Case no. C 09-3003 CW (PR) are 27 (1) a motion to dismiss all claims against Defendant P. Brown; 28 (2) Defendants Washington's, Lang's and Contreras's motion to 3 1 dismiss for failure to exhaust administrative remedies; and 2 (3) their motion for summary judgment under Federal Rule of Civil 3 Procedure 56(c) on the grounds that there is no genuine issue as to 4 any material fact, that they are entitled to judgment as a matter 5 of law, and that they are entitled to qualified immunity. 6 Plaintiff filed an opposition, and Defendants filed their reply to 7 the opposition. 8 9 Having considered the papers filed by the parties, the Court GRANTS Defendant Bailey's motion to dismiss for failure to exhaust United States District Court For the Northern District of California 10 administrative remedies in Case no. C 07-4277 CW (PR).2 11 also addresses Plaintiff's motion to add information in Case nos. 12 C 07-4277 CW (PR) and C 09-3003 CW (PR). 13 claims against Defendant P. Brown and substitutes Defendant B. 14 Brown in Case no. C 09-3003 CW (PR). 15 the complaint (docket no. 1 in Case no. C 09-3003 CW (PR)) and the 16 second amended complaint (docket no. 46 in Case no. C 07-4277 CW 17 (PR)) on Defendant B. Brown. 18 Eighth Amendment claims against Defendant Jane Doe, now B. Brown, 19 for the use of excessive force and for deliberate indifference to 20 medical needs. 21 complaint, the Court finds cognizable Eighth Amendment claims for 22 the use of excessive force and for deliberate indifference to 23 medical needs against Defendant Ramirez; therefore, the Court 24 GRANTS Plaintiff's motion for leave to amend to add these claims to 25 Case no. C 09-3003 CW (PR). 26 complaint (docket no. 1 in Case no. C 09-3003 CW (PR)) and second The Court The Court DISMISSES all The Court orders service of These complaints set out cognizable Upon considering the proposed second amended The Court orders service of the 27 28 2 Because the Court grants Defendant Bailey's motion to dismiss, it need not address his motion for summary judgment. 4 amended complaint (docket no. 46 in Case no. C 07-4277 CW (PR)) on 2 Defendant Ramirez. 3 claim for deliberate indifference to safety against Defendants 4 Washington, Lang, Contreras and B. Brown raised by Plaintiff in his 5 second amended complaint, the Court DENIES his motion for leave to 6 amend to add this claim because he fails to state a cognizable 7 claim. 8 amended complaint, the Court also DENIES Plaintiff's motion for 9 leave to amend to add his due process and equal protection claims 10 United States District Court For the Northern District of California 1 against Defendant Ramirez as well as all claims against Defendants 11 Sanquist and Bocello. 12 Defendants Washington's, Lang's and Contreras's motion to dismiss 13 and motion for summary judgment in Case no. C 09-3003 CW (PR) 14 because it GRANTS Plaintiff's motion to supplement his opposition 15 to their motions. Upon considering the amended Eighth Amendment Upon considering the remaining claims raised in his second Finally, the Court will not rule on FACTUAL BACKGROUND3 16 17 On June 24, 2003, Plaintiff -- who is wheel-chair bound -- and 18 his cell-mate Inmate Gentry moved from Facility D, Building 8 to 19 Facility D, Building 2. 20 property as he moved into the new cell. 21 Defendant Bailey "threw away Plaintiff's legal documents . . . ." 22 (Second Am. Compl. at 7.) 23 a verbal heated altercation." 24 Bailey then "pushed Plaintiff out of his wheelchair with intent to 25 inflect [sic] pain on Plaintiff." 26 Defendant Bailey checked Plaintiff's Plaintiff alleges Defendant Bailey and Plaintiff "got into (Id.) Plaintiff alleges Defendant (Id.) Plaintiff also claims that while he was incarcerated at SVSP, 27 28 3 The factual background cites to documents only in Case no. C 07-4277 CW (PR). 5 1 Defendant Bailey created a "false" 128G chrono which "fabricated" 2 that Plaintiff "was a child molester" and had committed "lewd and 3 or lascivious crimes against children."4 4 alleges Defendant Bailey distributed the false 128G chrono to other 5 inmates in an effort to "get Plaintiff killed or seriously 6 injured." (Compl. at 3.) Plaintiff (Id.) 7 Plaintiff was transferred to HDSP on July 7, 2006. 8 On July 25, 2006,5 Plaintiff submitted appeal log no. SVSP C-06-02436, alleging Defendant Bailey falsified a 128G chrono and 10 United States District Court For the Northern District of California 9 distributed it to other inmates in order to get Plaintiff "killed 11 or seriously injured." 12 C-06-02436 was denied at the first level of review and returned to 13 Plaintiff on September 16, 2006. 14 log no. SVSP C-06-02436 stated that Plaintiff's appeal was being 15 returned to him because "time constraints were not met." 16 (Medina Decl., Ex. I.) Log no. SVSP The screening form attached to (Id.) On October 17, 2006, Plaintiff submitted another inmate appeal 17 alleging Officer Bailey falsified a 128G chrono and distributed it 18 to other inmates in order to get Plaintiff "killed or seriously 19 injured." 20 screened out the October 17, 2006 appeal on December 14, 2006 21 because it was a "duplicate" of another. 22 17, 2006 appeal was not assigned a log number. 23 (Compl. at 30.) The informal level review response (Id. at 29.) The October On November 26, 2006, Plaintiff submitted an inmate appeal 24 25 26 27 28 4 The record does not establish when in the year 2003 this alleged event occurred. 5 Plaintiff has written the date that he submitted log no. SVSP C-06-02436 as "7-25-07." (Medina Decl., Ex. I.) The Court assumes Plaintiff mistakenly wrote "07" instead of "06" for the year. 6 1 alleging that when he received log no. SVSP C-06-02436, it was 2 "missing" the first level of review response. 3 Plaintiff also alleged the screening-out decision for not meeting 4 time constraints showed "blatant biasness [sic]," arguing that if 5 time constraints were indeed not met, the inmate appeal would never 6 have received a log number. 7 (Id. at 20.) (Id.) Plaintiff also submitted an inmate appeal at HDSP, identified 8 as log no. HDSP-06-01584, which "was related to Plaintiff's request 9 for single cell status and transfer to" SVSP. United States District Court For the Northern District of California 10 at 10.) Log no. HDSP-06-01584 also identified Defendant Bailey. 11 12 13 (Mot. for Summ. J. DISCUSSION I. Motion to Dismiss The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 14 110 Stat. 1321 (1996) (PLRA), amended 42 U.S.C. § 1997e to provide 15 that "[n]o action shall be brought with respect to prison 16 conditions under [42 U.S.C. § 1983], or any other Federal law, by a 17 prisoner confined in any jail, prison, or other correctional 18 facility until such administrative remedies as are available are 19 exhausted." 20 requirement is therefore mandatory, and no longer left to the 21 discretion of the district court. 22 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 23 42 U.S.C. § 1997e(a). The PLRA's exhaustion Woodford v. Ngo, 548 U.S. 81, 85 The PLRA's exhaustion requirement requires "proper exhaustion" 24 of administrative remedies. 25 "[p]risoners must now exhaust all 'available' remedies," id. at 85, 26 in "compliance with an agency's deadlines and other critical 27 procedural rules," id. at 90-91. 28 satisfied "by filing an untimely or otherwise procedurally Woodford, 548 U.S. at 93. This means The requirement cannot be 7 1 defective administrative grievance or appeal." 2 remedies "available" need not meet federal standards, nor need they 3 be "plain, speedy and effective." 4 524 (2002); Booth, 532 U.S. at 739-40 & n.5. 5 prisoner seeks relief not available in grievance proceedings, 6 notably money damages, exhaustion is still a prerequisite to suit. 7 Woodford, 548 U.S. at 85-86 (citing Booth, 532 U.S. at 734); see 8 also Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010). 9 Id. Further, the Porter v. Nussle, 534 U.S. 516, Even when the It is the prison's requirements, and not the PLRA, that define United States District Court For the Northern District of California 10 the boundaries of proper exhaustion. 11 218 (2007). 12 Rehabilitation (CDCR) provides inmates the right to file 13 administrative appeals alleging misconduct by correctional 14 officers. 15 provides inmates the right to appeal administratively "any 16 departmental decision, action, condition, or policy which they can 17 demonstrate as having an adverse effect upon their welfare." 18 id. § 3084.1(a). 19 remedies within this system, a prisoner must submit his complaint 20 as an inmate appeal on a 602 form and proceed through several 21 levels of appeal: (1) informal level grievance filed directly with 22 any correctional staff member; (2) first formal level appeal filed 23 with one of the institution's appeal coordinators; (3) second 24 formal level appeal filed with the institution head or designee; 25 and (4) third formal level appeal filed with the CDCR director or 26 designee. 27 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. 28 Cal. 1997). Jones v. Bock, 549 U.S. 199, The California Department of Corrections and See Cal. Code Regs. tit. 15, § 3084.1(e). CDCR also See In order to exhaust all available administrative Id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262, 1264-65 8 1 In California state prisons, the deadline for filing a 602 2 inmate appeal is fifteen working days from the date the 3 administrative decision or action being complained of is taken. 4 See Cal. Code Regs. tit. 15, § 3084.6(c); Ngo v. Woodford, 539 F.3d 5 1108, 1110 (9th Cir. 2008) (Ngo II) (finding claims unexhausted 6 where filed more than fifteen working days after date of decision, 7 i.e., after deadline in Title 15 of the California Code of 8 Regulations § 3084.6(c) had passed). 9 regulations explicitly create an exception to the timely filing However, California prison United States District Court For the Northern District of California 10 requirement if the inmate does not have the opportunity to file his 11 grievance during the fifteen-day filing period. 12 Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (remanding for 13 district court to consider whether plaintiff had the opportunity to 14 file a grievance within fifteen days after assault where his 15 injuries and subsequent segregation rendered grievance form 16 inaccessible). 17 an untimely appeal if "[t]ime limits for submitting the appeal are 18 exceeded and the appellant had the opportunity to file within the 19 prescribed time constraints." 20 15, §§ 3084.6(c) and 3084.3(c)(6)). 21 information he needs in order to file a grievance, however, there 22 is no delay of the fifteen-day filing period. 23 684 (distinguishing Marella and finding inmate must grieve claim of 24 excessive force within fifteen days of the date force was used, 25 when plaintiff had all the information he needed about the use of 26 force, not fifteen days from the date he later discovered he had 27 respiratory problems caused by that use of force). 28 Marella v. The appeals coordinator is only permitted to reject Id. (quoting Cal. Code Regs. tit. Where the inmate has all the Harvey, 605 F.3d at Non-exhaustion under § 1997e(a) is an affirmative defense 9 1 which should be brought by the defendants in an unenumerated motion 2 to dismiss under Federal Rule of Civil Procedure 12(b). 3 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 4 done so in Case no. C 07-4277 CW (PR). 5 whether Defendant Bailey's evidence is adequate to establish that 6 Plaintiff failed to exhaust administrative remedies with respect to 7 the present claims. 8 9 Wyatt v. Defendant Bailey has The Court now considers In support of his motion to dismiss Defendant Bailey provides the declaration of E. Medina, the appeals coordinator at SVSP. United States District Court For the Northern District of California 10 Appeals Coordinator Medina conducted a computerized search of the 11 institutional appeals database for inmate appeals submitted by 12 Plaintiff and for the appeal responses. 13 declaration that he found the following: 14 He states in his 11. None of the staff complaint inmate appeals submitted by Inmate Jones was reviewed past the second level of review except, Appeal No. SVSP-D03-01719. Appeal No. SVSP-D-03- 01719 was not related to any conduct as described in Plaintiff's complaint. See Exhibit D. 12. There were two inmate appeals submitted by Inmate Jones at Salinas Valley from January 2003 to August 2007 that mentioned Defendant Bailey, specifically Appeal No. SVSP-D- 03-02297 and Appeal No. SVSP-C06-02436. Appeal No. SVSP-D-03-02297 was not reviewed past the second level of review. See Appeal No. SVSP-D-03-02297 dated July 6, 2003 and accompanying documents mentioned above as Exhibit F. Appeal No. SVSP-C-06-02436 was screened out on September 27, 2006. Inmate grievances that are "screened out" are returned to the inmate with instruction on how to correct the deficiency and informed to resubmit once the deficiency is correct. Plaintiff failed to resubmit the inmate grievance. See Appeal No. Appeal No. SVSP-C-0602436 dated July 25, 2006 and accompanying document mentioned as Exhibit I above. 13. Inmate Jones did not submit any inmate appeals or have any inmate appeals proceed, past the second level of review that were directly related to Defendant Bailey allegedly falsifying and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 distributing a 128G Chrono or pushing Inmate Jones out of a wheelchair. 2 (Medina Decl. ¶ 11-13.) 3 The Court's review of the records to which the declaration 4 refers shows Appeals Coordinator Medina's description to be 5 accurate. 6 Plaintiff alleges SVSP prison officials "wantonly decided to 7 commit misconduct to prevent Plaintiff from exhausting." (Opp'n at 8 1.) Plaintiff argues that the administrative remedy became 9 "unavailable" for purposes of the exhaustion requirement when SVSP United States District Court For the Northern District of California 10 officials prevented him from filing, and therefore he properly 11 exhausted his administrative remedies. (Id. at 2.) 12 The Court finds unavailing Plaintiff's argument that prison 13 officials prevented him from exhausting. Although Plaintiff is not 14 required to allege that he resorted to extraordinary measures in 15 order to exhaust his administrative remedies, conclusory 16 allegations that the administrative remedies process is inadequate 17 are insufficient to defeat dismissal for failure to exhaust. See 18 White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). 19 Plaintiff also claims that log no. SVSP C-06-02436 was 20 "screened out under false pretense . . . ." (Id.) He argues the 21 screening-out decision for untimeliness amounted to a 22 "falsification of legal documents" designed to prevent Plaintiff 23 from exhausting his Eighth Amendment claim against Defendant 24 Bailey. 25 As Appeals Coordinator Medina explained, inmate appeals that 26 are "screened out" are returned to the inmate with instructions on 27 how to correct the deficiency. (Medina Decl. ¶ 13.) 28 11 The screening 1 form attached to log no. SVSP C-06-02436 and returned to Plaintiff 2 indicated, "If you allege the above reason is inaccurate, then 3 attach an explanation on a separate piece of paper, or use the back 4 of this screen-out." 5 form to the Appeals Coordinator with the necessary information 6 attached." 7 (Medina Decl., Ex. I.) "Please return this (Id.) Plaintiff does not allege, nor does the record indicate, that 8 he returned the form to the Appeals Coordinator with an explanation 9 alleging the screening-out decision for untimeliness was United States District Court For the Northern District of California 10 inaccurate. 11 "the opportunity to file within the prescribed time constraints." 12 Marella, 568 F.3d at 1027. 13 that once he learned Defendant Bailey passed around a falsified 14 128G chrono to other prisoners, he "confronted" Defendant Bailey 15 himself. 16 Neither does Plaintiff allege that he did not have To the contrary, Plaintiff claims (Am. Compl. at 4.) Therefore, the Court finds that because Plaintiff failed to 17 complete the administrative review process in accordance with 18 SVSP's applicable procedural rules,6 his claims against Defendant 19 Bailey are DISMISSED as unexhausted. 20 Accordingly, Defendant Bailey's motion to dismiss filed in 21 22 23 24 25 26 27 6 The record shows that after he was transferred to HDSP, Plaintiff completed the administrative review process as to log no. HDSP-06-01584 -- which identifies Defendant Bailey. However, Plaintiff could not exhaust his administrative remedies at HDSP with respect to his Eighth Amendment claim against Defendant Bailey stemming from the alleged falsified 128G chrono because he sought relief from HDSP, not from SVSP. As such, log no. HDSP-06-01584 does not serve to exhaust Plaintiff's Eighth Amendment claim against Defendant Bailey. 28 12 1 Case no. C 07-4277 CW (PR) is GRANTED.7 2 prejudice to refiling if he is able to exhaust these claims. 3 Clerk shall enter judgment in accordance with this Order, terminate 4 all pending motions and close the file. 5 II. Dismissal is without The 6 Defendant P. Brown's Motion to Dismiss; Plaintiff's Second Amended Complaint; and Plaintiff's Motion to Supplement in Case no. C 09-3003 CW (PR) 7 The Court now reviews the second amended complaint filed in 8 Case no. C 07-4277 CW (PR) (docket no. 46). 9 related to the claims in Case no. C 09-3003 CW (PR), the Court First, because it is United States District Court For the Northern District of California 10 directs the Clerk to file the second amended complaint in Case no. 11 C 09-3003 CW (PR). 12 A. Defendant Brown 13 As mentioned above, in the Order of Service in Case no. C 0714 4277 CW (PR), the Court dismissed Plaintiff's Eighth Amendment 15 claims for excessive force and deliberate indifference against 16 Defendant Jane Doe with leave to amend. In Plaintiff's "Motion for 17 leave to file an Amendant [sic] Complaint" (docket no. 44 in Case 18 no. C 07-4277 CW (PR)), he identified Defendant Jane Doe as "P. 19 Brown." (Pl.'s Mot. for Lv. to File Am. Compl. in Case no. C 07- 20 4277 CW (PR) at 1.) 21 In an Order dated July 2, 2009, the Court granted Plaintiff's 22 motion and directed the Clerk to substitute Defendant P. Brown for 23 Defendant Jane Doe, but to do so in Case no. C 09-3003 CW (PR). 24 In the dispositive motion filed in Case no. C 09-3003 CW (PR), 25 26 27 28 7 Because the Court grants Defendant Bailey's motion to dismiss for Plaintiff's failure to exhaust administrative remedies, it need not decide his motion for summary judgment under Federal Rule of Civil Procedure 56(c) for Plaintiff's failure to initiate this action before the statute of limitations ran on his claims. 13 1 Defendants claim that Defendant P. Brown was "erroneously 2 identified as a transportation officer in the vehicle with 3 Plaintiff during the transport to [HDSP] in a response to 4 Plaintiff's discovery request." 5 for Summ. J. in Case no. C 09-3003 CW (PR) at 18.) 6 state that Defendant P. Brown was "working as a correctional 7 officer at Mule Creek State Prison on the day of the alleged 8 incident," and thus "not involved in any way with the events 9 occurring on July 7, 2006" at SVSP. (Defs.' Mot. to Dismiss and Mot. They further (Id. at 18-19.) Therefore, United States District Court For the Northern District of California 10 they argue that all claims against Defendant P. Brown should be 11 dismissed from this case. 12 amended their discovery response to identify the transportation 13 officer as "B. Brown." 14 (Id. at 19.) Defendants have also (Id.) Accordingly, the Court partially GRANTS the dispositive motion 15 filed in Case no. C 09-3003 CW (PR) as to Defendant P. Brown and 16 dismisses all claims against her. 17 the docket in Case no. C 09-3003 CW (PR) to reflect the correct 18 initial of Defendant Brown's first name as "B." 19 service of the complaint (docket no. 1 in Case no. C 09-3003 CW 20 (PR)) and the second amended complaint (docket no. 46 in Case no. 21 C 07-4277 CW (PR)) on Defendant B. Brown. 22 cognizable Eighth Amendment claims against Defendant Jane Doe, now 23 B. Brown, for the use of excessive force and for deliberate 24 indifference to medical needs. 25 The Court orders These complaints set out 26 Eighth Amendment Claims against Defendants Washington, Lang, Contreras and B. Brown for Deliberate Indifference to Safety 27 Plaintiff alleges in his original complaint in Case no. C 07- 28 B. The Clerk is directed to amend 4277 CW (PR) that Defendants Washington, Lang, Contreras and Jane 14 1 Doe (now B. Brown) violated his Eighth Amendment right to be free 2 of cruel and unusual punishment when they "forcibly" took him to 3 HDSP. 4 (Compl. at 6.) The Eighth Amendment requires that prison officials take 5 reasonable measures to guarantee the safety of prisoners. 6 v. Brennan, 511 U.S. 825, 832 (1994). 7 officials to protect inmates from dangerous conditions at the 8 prison violates the Eighth Amendment only when two requirements are 9 met: (1) the deprivation alleged is, objectively, sufficiently Farmer The failure of prison United States District Court For the Northern District of California 10 serious; and (2) the prison official is, subjectively, deliberately 11 indifferent to inmate safety. 12 Terhune, 413 F.3d 1036, 1040-41 (9th Cir. 2005). 13 Farmer, 511 U.S. at 834; Hearns v. The Court dismissed Plaintiff's Eighth Amendment claim for 14 deliberate indifference to safety against Defendants Washington, 15 Lang, Contreras and Brown in Case no. C 07-4277 CW (PR) on the 16 ground that Plaintiff had not "alleged that he was in any more 17 danger at HDSP than he was at SVSP." 18 The Court instructed Plaintiff that if he "can truthfully allege 19 facts that would support a claim that particular prison officials 20 transferred him to HDSP with deliberate indifference to particular 21 facts establishing serious danger to his safety there, he may move 22 for leave to amend his complaint." 23 (Order of Service at 10.) (Id.) The Court now considers the proposed second amendment 24 complaint which Plaintiff has filed in Case no. C 07-4277 CW (PR). 25 In it, he alleges the "unwarranted adverse transfer was done so 26 that prison official would have easier access to harass, 27 retaliate," and "attempt to kill." 28 claims HDSP officials "continually attempt[ed] and almost succeded 15 (Second Am. Compl. at 9.) He 1 [sic] several times" to kill Plaintiff. 2 attempts "severely" injured and "permanently disabled" Plaintiff. 3 (Id.) 4 Plaintiff alleges these While Plaintiff has alleged his belief that he was in more 5 danger at HDSP, he has failed to allege facts that would support a 6 claim that Defendants Washington, Lang, Contreras and B. Brown 7 transferred him to HDSP knowing that he faced serious danger to his 8 safety there. 9 these Defendants were deliberately indifferent to his safety by Instead, Plaintiff makes conclusory allegations that United States District Court For the Northern District of California 10 transferring him to HDSP. 11 sufficient to show that these Defendants were "subjectively 12 deliberately indifferent" to Plaintiff's safety. 13 U.S. at 834. 14 his motion for leave to amend to add his Eighth Amendment claim for 15 deliberate indifference to his safety against Defendants 16 Washington, Lang, Contreras and B. Brown is DENIED. Such conclusory allegations are not See Farmer, 511 Because Plaintiff fails to state a cognizable claim, 17 C. 18 Plaintiff moves to add information in connection with his Plaintiff's Supplemental Motion to Add Information 19 deposition on October 7, 2010. 20 states "he will expound on facts in connection with incidents of 21 Defendants P./B. Brown and Lang stoping [sic] along the way of 22 forced transfer and forcing Plaintiff to drink and swallow a liquid 23 substance that . . . discombobulated Plaintiff and made him more 24 helpless . . . ." 25 In support of his motion, Plaintiff (Mot. to Add Information at 1.) This claim appears to relate to the allegations in Case no. 26 C 09-3003 CW (PR). 27 motion to add information as a motion to supplement his opposition 28 in that case. Therefore, the Court construes Plaintiff's Plaintiff is granted leave to file a supplemental 16 1 opposition to Defendants' motion to dismiss and motion for summary 2 judgment in Case no. C 09-3003 CW (PR) within thirty (30) days of 3 this Order. 4 Plaintiff's supplemental opposition, they may do so no later than 5 fifteen (15) days after Plaintiff's supplemental opposition is 6 filed. If Defendants wish to file a supplemental response to 7 D. 8 In Case no. C 09-3003 CW (PR), the Court found that Plaintiff Defendant Ramirez stated a claim that Defendants Washington, Lang, Contreras and Jane 10 United States District Court For the Northern District of California 9 Doe (now B. Brown) violated Plaintiff's Eighth Amendment rights by 11 using excessive force against him on July 7, 2006 during his 12 transfer to HDSP and by being deliberately indifferent to his 13 serious medical needs when they failed to treat his injuries. 14 Plaintiff also alleges in his proposed second amended complaint 15 that Defendant Ramirez violated his Eighth and Fourteenth Amendment 16 rights in that he "aided and abeded [sic] Defendants and other 17 prison officials" in Plaintiff's transfer to HDSP. 18 Compl. at 8.) 19 (Second Am. As noted above, a prison official violates the Eighth 20 Amendment when two requirements are met: (1) the violation alleged 21 must be, objectively, sufficiently serious, see Farmer, 511 U.S. at 22 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and 23 (2) the prison official must possess a sufficiently culpable state 24 of mind, see id. (citing Wilson, 501 U.S. at 297). 25 whether a deprivation of a basic necessity, such as medical care, 26 is sufficiently serious to satisfy the objective component of an 27 Eighth Amendment claim, a court must consider the circumstances, 28 nature, and duration of the deprivation. 17 In determining The more basic the need, 1 the shorter the time it can be withheld. 2 F.3d 726, 731 (9th Cir. 2000). 3 See Johnson v. Lewis, 217 In prison-conditions cases, the necessary state of mind is one 4 of "deliberate indifference." 5 A prison employee is deliberately indifferent if he knows that a 6 prisoner faces a substantial risk of serious harm and disregards 7 that risk by failing to take reasonable steps to abate it. 8 837. 9 See, e.g., Farmer, 511 U.S. at 834. Id. at Liberally construed, Plaintiff's allegations that Defendant United States District Court For the Northern District of California 10 Ramirez "aided and abetted" the actions of Defendants Washington, 11 Lang, Contreras and B. Brown of failing to attend to his injuries 12 during his transfer to HDSP states a claim for deliberate 13 indifference to his serious medical needs. 14 429 U.S. 97, 104 (1976) (deliberate indifference to serious medical 15 needs presents a cognizable claim for violation of the Eighth 16 Amendment). 17 Defendant Ramirez "aided and abetted" the actions of these 18 Defendants during the transfer also state a claim for excessive 19 force. 20 claims against Defendant Ramirez for deliberate indifference to his 21 medical needs and excessive force. 22 Plaintiff's motion for leave to amend to add these claims to Case 23 no. C 09-3003 CW (PR). See Estelle v. Gamble, Liberally construed, Plaintiff's allegations that Accordingly, Plaintiff has adequately plead cognizable Therefore, the Court GRANTS 24 However, Plaintiff's due process claim against Defendant 25 Ramirez challenging his transfer to HDSP is not cognizable because 26 it is well established that prisoners have no constitutional right 27 to incarceration in a particular institution. 28 Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 18 See Olim v. 1 215, 224 (1976). 2 against Defendant Ramirez is not cognizable because does not argue 3 that the mistreatment alleged occurred because of his race. 4 Further, Plaintiff's equal protection claim Accordingly, the Court DENIES Plaintiff's motion for leave to 5 amend to add his Fourteenth Amendment due process and equal 6 protection claims against Defendant Ramirez. 7 E. 8 Plaintiff alleges Defendants Sanquist and Bocello violated his 9 Defendants Sanquist and Bocello Eighth and Fourteenth Amendment rights on a number of occasions.8 United States District Court For the Northern District of California 10 Plaintiff claims Defendant Sanquist "maliciously and sadistically" 11 struck Plaintiff with a pair of handcuffs, "chiping [sic] 12 Plaintiff's tooth," in violation of his Eighth and Fourteenth 13 Amendment rights. 14 sexually assaulted him in violation of his Eighth and Fourteenth 15 Amendment rights. 16 and Bocello forced Plaintiff to sleep in a "cage" on a concrete 17 floor for two days without a mattress, bedding or food, in 18 violation of his Eighth and Fourteenth Amendment rights. 19 The Court DENIES Plaintiff's motion for leave to amend to add his 20 claims alleged against Defendants Sanquist and Bocello because they 21 are not related to the claims before the Court. 22 wishes to raise these claims, he must file a new civil rights 23 action after exhausting his administrative remedies. (Id. at 9.) Defendant Bocello allegedly Plaintiff also alleges both Defendants Sanquist (Id.) If Plaintiff 24 25 26 27 28 8 Plaintiff also alleges Defendants Evans and Martines violated his Eighth and Fourteenth Amendment rights because they "never responded to Plaintiff's request for interviews" concerning his transfer to HDSP and, as such, aided and abetted the transfer. (Second Am. Compl. at 7-8). Plaintiff raised this claim in his original complaint, and the Court did not find it cognizable. Therefore, the Court does not grant Plaintiff leave to raise this claim again. 19 1 CONCLUSION 2 For the foregoing reasons, 3 1. 4 The Court orders the following as to Case. no. c 07-4277 CW (PR): 5 a. The Court finds that the evidence is adequate to 6 support Defendant Bailey's affirmative defense of non-exhaustion of 7 administrative remedies, and GRANTS Defendant Bailey's Rule 12(b) 8 unenumerated motion to dismiss Plaintiff's excessive force and 9 deliberate indifference to safety claims as unexhausted (docket no. United States District Court For the Northern District of California 10 85 in Case no. C 07-4277 CW (PR)). 11 to re-filing if Plaintiff is able to exhaust these claims. 12 b. Dismissal is without prejudice The Clerk shall enter judgment in accordance with 13 this Order, terminate all pending motions in this case, including 14 Plaintiff's motion to add information (docket no. 83 in Case no. 15 C 07-4277 CW (PR)), and close the file. 16 17 2. The Court orders the following as to Case no. C 09-3003 CW (PR): 18 a. The Clerk shall file Plaintiff's second amended 19 complaint (docket no. 46 in Case no. C 07-4277 CW (PR)) in Case no. 20 C 09-3003 CW (PR). 21 b. The Court partially GRANTS the dispositive motion 22 (docket no. 38) filed in Case no. C 09-3003 CW (PR) as to Defendant 23 P. Brown. 24 The Clerk is directed to amend the docket in Case no. C 09-3003 CW 25 (PR) to reflect the correct initial of Defendant Brown's first name 26 as "B." 27 28 All claims against Defendant P. Brown are DISMISSED. c. The Court will not rule on Defendants Washington's, Lang's and Contreras's motion to dismiss and motion for summary 20 1 judgment in Case no. C 09-3003 CW (PR). 2 Motion to Add Information (docket no. 36 in Case no. C 09-3003 CW 3 (PR)) -- which has been construed as a motion to supplement his 4 opposition -- is GRANTED. 5 opposition to these Defendants' motion to dismiss and motion for 6 summary judgment within thirty (30) days of this Order. 7 Defendants Washington, Lang and Contreras wish to file a 8 supplemental response to Plaintiff's supplemental opposition, they 9 may do so no later than fifteen (15) days after Plaintiff's United States District Court For the Northern District of California 10 11 Plaintiff's Supplemental Plaintiff may file a supplemental If supplemental opposition is filed. d. Plaintiff's motion for leave to amend to add his 12 claims alleged against Defendants Sanquist and Bocello is DENIED 13 because they are not related to the claims before the Court. 14 Plaintiff wishes to raise these claims, he must file a new civil 15 rights action after exhausting his administrative remedies. 16 e. If Plaintiff has alleged cognizable Eighth Amendment 17 claims against Defendant Ramirez for use of excessive force and 18 deliberate indifference to his serious medical needs; therefore, 19 the Court GRANTS his motion for leave to amend to add these claims 20 to Case no. C 09-3003 CW (PR). 21 for leave to amend to add his Eighth Amendment claim for deliberate 22 indifference to his safety against Defendants Washington, Lang, 23 Contreras and Brown as well as his due process and equal protection 24 claims against Defendant Ramirez. 25 f. The Court DENIES Plaintiff's motion The Clerk shall mail a Notice of Lawsuit, a Request 26 for Waiver of Service of Summons, two copies of the Waiver of 27 Service of Summons, copies of the complaint and all attachments 28 thereto (docket no. 1 in Case no. C 09-3003 CW (PR)), the second 21 1 amended complaint and all attachments thereto (docket no. 46 in 2 Case no. C 07-4277 CW (PR)), the Orders dated November 19, 2008 and 3 July 2, 2009 (docket nos. 14, 45 in Case no. C 07-4277 CW (PR)), 4 and this Order to SVSP Officers E. Ramirez and B. Brown. 5 shall also mail a copy of the complaint and a copy of this Order to 6 Adrian Shin at the State Attorney General's Office in San 7 Francisco, the attorney representing Defendants Washington, Lang 8 and Contreras. 9 Order to Plaintiff. United States District Court For the Northern District of California 10 g. The Clerk Additionally, the Clerk shall mail a copy of this Defendants Ramirez and B. Brown are cautioned that 11 Rule 4 of the Federal Rules of Civil Procedure requires them to 12 cooperate in saving unnecessary costs of service of the summons and 13 complaint. 14 notified of this action and asked by the Court, on behalf of 15 Plaintiff, to waive service of the summons, fail to do so, they 16 will be required to bear the cost of such service unless good cause 17 be shown for their failure to sign and return the waiver form. 18 service is waived, this action will proceed as if these Defendants 19 had been served on the date that the waiver is filed, except that 20 pursuant to Rule 12(a)(1)(B), they will not be required to serve 21 and file an answer before sixty (60) days from the date on which 22 the request for waiver was sent. 23 respond than would be required if formal service of summons is 24 necessary.) 25 statement set forth at the foot of the waiver form that more 26 completely describes the duties of the parties with regard to 27 waiver of service of the summons. 28 date provided in the Notice but before these Defendants have been Pursuant to Rule 4, if these Defendants, after being If (This allows a longer time to Defendants Ramirez and B. Brown are asked to read the 22 If service is waived after the 1 personally served, the Answer shall be due sixty (60) days from the 2 date on which the request for waiver was sent or twenty (20) days 3 from the date the waiver form is filed, whichever is later. 4 h. Defendants Ramirez and Brown shall answer the 5 complaint in accordance with the Federal Rules of Civil Procedure. 6 The following briefing schedule shall govern dispositive motions in 7 this action: 8 9 1) No later than thirty (30) days from the date these Defendants' answer is due, they shall file a motion for United States District Court For the Northern District of California 10 summary judgment or other dispositive motion. 11 supported by adequate factual documentation and shall conform in 12 all respects to Federal Rule of Civil Procedure 56. 13 in Defendants Washington's, Lang's and Contreras's motion to 14 dismiss and motion for summary judgment. 15 of the opinion that this case cannot be resolved by summary 16 judgment, they shall so inform the Court prior to the date the 17 summary judgment motion is due. 18 shall be promptly served on Plaintiff. 19 2) The motion shall be They may join If these Defendants are All papers filed with the Court Plaintiff's opposition to the dispositive 20 motion shall be filed with the Court and served on these Defendants 21 no later than thirty (30) days after the date on which their motion 22 is filed. 23 should be given to pro se plaintiffs facing a summary judgment 24 motion: 25 The Ninth Circuit has held that the following notice 27 The defendant has made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 28 Rule 56 tells you what you must do in order to 26 23 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendant], your case will be dismissed and there will be no trial. 11 See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en 12 banc). 13 Plaintiff is advised to read Rule 56 of the Federal Rules of 14 Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 15 (party opposing summary judgment must come forward with evidence 16 showing triable issues of material fact on every essential element 17 of his claim). Plaintiff is cautioned that because he bears the 18 burden of proving his allegations in this case, he must be prepared 19 to produce evidence in support of those allegations when he files 20 his opposition to these Defendants' dispositive motion. Such 21 evidence may include sworn declarations from himself and other 22 witnesses to the incident, and copies of documents authenticated by 23 sworn declaration. Plaintiff will not be able to avoid summary 24 judgment simply by repeating the allegations of his complaint. 25 3) If Defendants Ramirez and Brown wish to file a 26 reply brief, they shall do so no later than fifteen (15) days after 27 the date Plaintiff's opposition is filed. 28 24 1 4) The motion shall be deemed submitted as of the 2 date the reply brief is due. 3 unless the Court so orders at a later date. 4 i. No hearing will be held on the motion It is Plaintiff's responsibility to prosecute this 5 case. 6 address and must comply with the Court's orders in a timely 7 fashion. Plaintiff must keep the Court informed of any change of 8 9 j. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension United States District Court For the Northern District of California 10 of time must be filed no later than fifteen (15) days prior to the 11 deadline sought to be extended. 12 13 14 15 3. This Order terminates Docket nos. 83 and 85 in Case no. C 07-4277 CW (PR) and Docket no. 36 in Case no. C 09-3003 CW (PR). IT IS SO ORDERED. DATED: 3/31/2011 CLAUDIA WILKEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 25 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 MALIK JONES, Case Number: CV07-04277 CW CV09-3003CW 4 Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 MIKE EVANS, WARDEN et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 31, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 Malik Jones K-09065 FC-O-3-116 P.O. Box 1050 Soledad, CA 93960 16 17 18 Adrian Shin Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 19 20 21 Officer E. Ramirez Salinas Valley State Prison P.O. box 1020 Soledad, CA 93960-1020 22 23 24 Officer B.Brown Salinas Valley State Prison P.O. box 1020 Soledad, CA 93960-1020 25 26 27 Dated: March 31, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 28 26
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