(PC) Jones v. Shelton

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 LAVAL JONES, Case No. 1:19-cv-01068-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT THIS ACTION

13 v. PROCEED ON PLAINTIFF’S CLAIM FOR

EXCESSIVE FORCE IN VIOLATION OF THE

14 SHELTON, et al.,

EIGHTH AMENDMENT AGAINST

15 Defendants. DEFENDANT WEBBER, AND THAT ALL

OTHER CLAIMS AND DEFENDANTS BE

16 DISMISSED

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(ECF NO. 1)

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OBJECTIONS, IF ANY, DUE WITHIN

19 TWENTY-ONE (21) DAYS

20 ORDER DIRECTING CLERK TO ASSIGN

DISTRICT JUDGE

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22 Laval Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

23 civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing

24 this action on August 5, 2019. (ECF No. 1).

25 The Court screened Plaintiff’s complaint and found that Plaintiff stated a cognizable claim

26 for excessive force in violation of the Eighth Amendment against Defendant Webber. (ECF No.

27 11). The Court also found that Plaintiff failed to state any other cognizable claims. (Id.). The

28 Court gave Plaintiff options as to how to move forward. (Id. at 11). On May 4, 2020, Plaintiff

1 filed his response to the Court’s screening order, stating that he wants to stand on his complaint.

2 (ECF No. 12).

3 Accordingly, the Court issues these findings and recommendations to the district judge

4 consistent with the screening order. Plaintiff has twenty-one days from the date of service of

5 these findings and recommendations to file his objections.

6 I. SCREENING REQUIRMENT

7 The Court is required to screen complaints brought by prisoners seeking relief against a

8 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

9 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

10 “frivolous, malicious, or fails to state a claim upon which relief may be granted,” or that “seek

11 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1),

12 (2). As Plaintiff is proceeding in forma pauperis (ECF No. 10), the Court may also screen the

13 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that

14 may have been paid, the court shall dismiss the case at any time if the court determines that the

15 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. §

16 1915(e)(2)(B)(ii).

17 A complaint is required to contain “a short and plain statement of the claim showing that

18 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

21 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

23 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this

24 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not

25 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681

26 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal

27 conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

28 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

1 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding

2 that pro se complaints should continue to be liberally construed after Iqbal).

3 II. SUMMARY OF PLAINTIFF’S COMPLAINT

4 Plaintiff alleges the following in his complaint:

5 Plaintiff is an inmate at Corcoran State Prison. Plaintiff alleges that Defendant

6 Correctional Officer Shelton has been telling people at the prison that Plaintiff is cutting in the

7 canteen line and having the inmate population “jump” him. On October 10, 2018, Plaintiff

8 sustained a black eye, a swollen jaw, a busted lip, and a scratch on the right side of his nose.

9 The correctional staff stood by and did nothing.

10 Correctional staff refused to call medical staff and would not allow Plaintiff to seek

11 medical help (correctional staff turned him away from the clinic).

12 Plaintiff also filed a harassment grievance claiming that he had been harassed on a daily

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14 Plaintiff states that he is seriously alarmed, annoyed, and terrorized in state custody.

15 “Corrupted cops” stop Plaintiff illegally to search him without finding anything. “He”

16 spits in Plaintiff’s direction, stands in Plaintiff’s way to prevent him from walking past or makes

17 Plaintiff walk the long way around, and yells out “Fuct [sic] you” when Plaintiff walks past.

18 Plaintiff is having emotional and mental difficulty coping with incarceration in state

19 custody. He is mentally distressed and in a great depression.

20 Plaintiff was punched by Defendant Correctional Officer Webber in front of the CCMS

21 clinic for no reason after Plaintiff visited his mental health team. Defendant Webber punched

22 Plaintiff in the chest as he was walking out the door. Plaintiff felt internal pain for weeks.

23 On September 12, 2018, Defendant Webber refused to let Plaintiff get medical care.

24 When Plaintiff went to go seek medical help, Defendant Webber told Plaintiff to take it back to

25 the building.

26 Defendant Webber violated Plaintiff’s free speech by telling him to “shut up,” and that he

27 does not want to hear what Plaintiff has to say.

28 Plaintiff is harassed on a daily basis.

1 III. ANALYSIS OF PLAINTIFF’S CLAIMS

2 A. Section 1983

3 The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

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usage, of any State or Territory or the District of Columbia, subjects, or causes

5 to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

6 secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress....

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42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

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provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

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U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also

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Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles,

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697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012);

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Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law, and (2) the defendant deprived him of rights secured by the Constitution

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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

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Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of

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state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if

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he does an affirmative act, participates in another's affirmative act, or omits to perform an act

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which he is legally required to do that causes the deprivation of which complaint is made.’”

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Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be

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established when an official sets in motion a ‘series of acts by others which the actor knows or

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reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479

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F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles

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the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp.,

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637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026

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(9th Cir. 2008).

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1 A plaintiff must demonstrate that each named defendant personally participated in the

2 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual

3 connection or link between the actions of the defendants and the deprivation alleged to have been

4 suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691,

5 695 (1978).

6 B. Failure to Identify Specific Defendants and Acts

7 As an initial matter, Plaintiff generally fails to state clearly what each defendant did to

8 him that deprived him of his constitutional rights. Plaintiff makes allegations about “correctional

9 staff” generally, without specifying who did what. The Court will address the allegations against

10 specifically named defendants below. As to all other defendants, the Court will recommend that

11 they be dismissed because Plaintiff failed to allege what they did or did not do that violated his

12 constitutional rights.

13 C. Excessive Force

14 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

15 restraints on prison officials, who may not… use excessive physical force against prisoners.”

16 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of

17 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry

18 is… whether force was applied in a good-faith effort to maintain or restore discipline, or

19 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).

20 When determining whether the force was excessive, the court looks to the “extent of

21 injury suffered by an inmate…, the need for application of force, the relationship between that

22 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’

23 and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7

24 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force

25 generally do not implicate the Eighth Amendment, significant injury need not be evident in the

26 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically

27 use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503

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1 Plaintiff’s complaint sufficiently states a claim of excessive force against Defendant

2 Correctional Officer Webber to proceed past the screening stage. Plaintiff alleges that Defendant

3 Webber punched Plaintiff for no reason, and that Plaintiff continued to feel internal pain for

4 weeks. Construing the allegations in favor of Plaintiff, Plaintiff has alleged that Defendant

5 Webber used force not to restore discipline and order, but rather maliciously and sadistically for

6 the purpose of causing harm.

7 D. Harassment

8 Plaintiff alleges that correctional officers harassed him by stating that he was cutting in

9 line at the canteen, spitting in his direction, yelling at him, standing in his way, and similar

10 conduct.

11 Allegations of name-calling, verbal abuse, or threats generally fail to state a constitutional

12 claim. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (“[V]erbal harassment generally

13 does not violate the Eighth Amendment.”), opinion amended on denial of reh’g, 135 F.3d 1318

14 (9th Cir. 1998); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (holding that a

15 prisoner's allegations of threats allegedly made by guards failed to state a cause of action).

16 However, verbal harassment may violate the constitution when it is “‘unusually gross even for a

17 prison setting and [is] calculated to and [does] cause [plaintiff] psychological damage.” Cox v.

18 Kernan, 2019 WL 6840136, at *5 (E.D. Cal., Dec. 16, 2019) (alterations in original) (quoting

19 Keenan, 83 F.3d 1083 at 1092)

20 The Court has reviewed Plaintiff’s allegations of harassment and finds that Plaintiff has

21 failed to state a claim for cruel and unusual punishment under the Eighth Amendment because

22 Plaintiff has not sufficiently alleged that the harassment was unusually gross even for a prison

23 setting and was calculated to cause Plaintiff psychological damage.

24 E. Failure to Protect

25 Under the Eighth Amendment, prison officials have a duty to protect prisoners from

26 violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To

27 establish a violation of this duty, the prisoner must establish that prison officials were deliberately

28 indifferent to a serious threat to the inmate's safety. Id. at 834.

1 “‘Deliberate indifference’ has both subjective and objective components.” Labatad v.

2 Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). The prisoner must show that “the

3 official [knew] of and disregard[ed] an excessive risk to inmate ... safety; the official must both be

4 aware of facts from which the inference could be drawn that a substantial risk of serious harm

5 exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 837. “Liability may

6 follow only if a prison official ‘knows that inmates face a substantial risk of serious harm and

7 disregards that risk by failing to take reasonable measures to abate it.’” Labatad, 714 F.3d at

8 1160 (quoting Farmer, 511 U.S. at 847)

9 Plaintiff’s complaint fails to state a cognizable claim for failure to protect in violation of

10 the Eighth Amendment. Plaintiff alleges that Defendant Correctional Officer Shelton told

11 inmates that Plaintiff was cutting in the canteen line. Plaintiff also alleges that the “inmate

12 population” attacked him on October 10, 2018, and that correctional staff stood by and did

13 nothing. However, these facts are not sufficient to demonstrate that Defendant Shelton’s words

14 exposed Plaintiff to harm, knowing that harm would result. Plaintiff does not allege when

15 Defendant Shelton made his comment about cutting in line, does not allege whether the inmates

16 who attacked him heard that comment, and does not make any allegations suggesting that the

17 inmates attacked Plaintiff due to the comment.

18 As to Plaintiff’s claim that correctional officers failed to act to protect him, Plaintiff has

19 not alleged facts from which the Court could draw a reasonable inference that these correctional

20 officers were able to protect him but failed to act.

21 F. Eighth Amendment: Deliberate Indifference to Serious Medical Needs

22 Plaintiff also alleges that Defendants were deliberately indifferent to his serious medical

23 needs.

24 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

25 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

26 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff

27 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition

28 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and

1 (2) that “the defendant's response to the need was deliberately indifferent.” Id. (quoting

2 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations

3 marks omitted), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th

4 Cir. 1997) (en banc)).

5 Deliberate indifference is established only where the defendant subjectively “knows of and

6 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057

7 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate

8 indifference can be established “by showing (a) a purposeful act or failure to respond to a

9 prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d

10 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high

11 risk of harm that is either known or so obvious that it should be known”) is insufficient to

12 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5

13 (1994) (citations omitted).

14 A difference of opinion between an inmate and prison medical personnel—or between

15 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to

16 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

17 Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in

18 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment

19 under the Eighth Amendment. Medical malpractice does not become a constitutional violation

20 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To establish a difference of

21 opinion rising to the level of deliberate indifference, a “plaintiff must show that the course of

22 treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v.

23 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

24 Plaintiff has alleged that certain correctional officer failed to call medical staff and would

25 not allow him to seek medical help. He later alleges that Defendant Webber refused to let him get

26 medical care.

27 These facts are not sufficient to state a claim under these legal standards. Plaintiff fails to

28 identify most of the responsible correctional officers by name (or with a description and identifier

1 such John Doe or Jane Doe). Additionally, Plaintiff does not sufficiently describe his serious

2 medical need(s). Plaintiff’s allegations are not sufficient to show that any defendant knew that

3 Plaintiff had a serious medical need but failed to address it.

4 G. First Amendment

5 Plaintiff alleges that Defendant Webber violated his First Amendment rights by telling

6 Plaintiff to shut up and telling Plaintiff that he did not want to hear what Plaintiff had to say.

7 Plaintiff does not allege that he was engaging in any protected conduct, such as filing a grievance.

8 Plaintiff does not have a constitutional right to speak with any correctional officer at any time.

9 Thus, Plaintiff’s allegations do not establish a violation of his First Amendment rights. See, e.g.,

10 Burgess v. Raya, 2013 WL 1704030, at *4 (E.D. Cal., Apr. 19, 2013).

11 IV. CONCLUSION AND RECOMMENDATIONS

12 The Court has screened the complaint and finds that Plaintiff has stated a cognizable claim

13 for excessive force in violation of the Eighth Amendment against Defendant Webber. The Court

14 also finds that Plaintiff’s complaint fails to state any other cognizable claims.

15 As Plaintiff was given leave to amend but chose to stand on his complaint, the Court does

16 not recommend granting further leave to amend.

17 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that:

18 1. This case proceed on Plaintiff’s claim against Defendant Webber for excessive force

19 in violation of the Eighth Amendment; and

2. All other claims and defendants be dismissed.

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21 These findings and recommendations will be submitted to the United States district judge

22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one

23 (21) days after being served with these findings and recommendations, Plaintiff may file written

24 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

25 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

26 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

27 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Qo 4.40 EUVOUINMY ENS MVOC A POR IMO AY A

1 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge

2 | to this case.

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4 IT IS SO ORDERED.

5] Dated: _ May 5, 2020 [Jee hey □□

6 UNITED STATES MAGISTRATE JUDGE

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