The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 CORNELL DAVIS, Case No. 1:20-cv-00640-DAD-JLT (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
TO DISMISS CLAIMS AND DEFENDANT
13 v.
(Doc. 1)
14 A. AGUNDEZ, et al.,
21-DAY DEADLINE
15 Defendants.
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17 Cornell Davis alleges the defendants subjected him to excessive force and retaliation.
18 (Doc. 1.) On February 26, 2021, the Court issued a screening order, finding that Plaintiff’s
19 complaint states cognizable claims against Defendants Agundez, Dominguez, and Urrutia, but not
20 against Defendant Chavez. (Doc. 16.) Therefore, the Court directed Plaintiff to file a first
21 amended complaint curing the deficiencies in his pleading or a notice that he wishes to proceed
22 only on the claims found cognizable. (Id. at 8.)
23 On March 26, 2021, Plaintiff filed a notice indicating that he does not intend to file an
24 amended complaint, stating, “all my allegations are true so this whole file another is irrelevant.”
25 (Doc. 17.) Thus, it appears that Plaintiff wishes to “stand on” his complaint. See Edwards v.
26 Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). Accordingly, the undersigned
27 recommends that Defendant Chavez and Plaintiff’s non-cognizable claims be dismissed from this
action.
1 I. SCREENING REQUIREMENT
2 The Court is required to screen complaints brought by prisoners seeking relief against a
3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious,
5 fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant
6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if
7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal
8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
9 II. PLEADING REQUIREMENTS
10 A. Federal Rule of Civil Procedure 8(a)
11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
12 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain
13 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
14 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the
15 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal
16 quotation marks and citation omitted).
17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
19 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must
20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
21 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as
22 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of
24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the
25 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories.
26 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil
27 rights complaint may not supply essential elements of the claim that were not initially pled,”
1 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe
2 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and
3 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to
4 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall
5 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).
6 B. Linkage and Causation
7 Section 1983 provides a cause of action for the violation of constitutional or other federal
8 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under
9 section 1983, a plaintiff must show a causal connection or link between the actions of the
10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode,
11 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the
12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative
13 act, participates in another’s affirmative acts, or omits to perform an act which he is legally
14 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588
15 F.2d 740, 743 (9th Cir. 1978) (citation omitted).
16 III. PLAINTIFF’S ALLEGATIONS
17 Plaintiff’s claims stem from incidents at Kern Valley State Prison. (Doc. 1 at 1.) Plaintiff
18 alleges that on June 19, 2019, Correctional Officer Agundez “attacked [him] while [he] was
19 having a seizure and slammed” his face, “injuring [his] right jaw.” (Id. at 3.) He alleges that
20 Correctional Officer Urrutia “assisted . . . by jumping full weight on [his] head and neck area”
21 while he was still suffering from the seizure. (Id.) In addition to the injury to his jaw, Plaintiff
22 suffered abrasions to his face. (Id.)
23 The officers placed Plaintiff in a holding cell instead of taking him to see medical
24 personnel. (Id.). Correctional Officers Stewart and Parker then searched him “unclothed . . . and
25 . . . nothing was found.” (Id.) Plaintiff alleges that Correctional Sergeant Dominguez then
26 approached him “trying to bribe” him. (Id.) According to Plaintiff, Dominguez stated that if he
27 chose not to file an administrative grievance, “this matter . . . will be a simple 115,” but that if he
1 Plaintiff refused to comply, stating that he was “going to the courts.” (Id.) Plaintiff alleges that
2 officers then planted “some unknown substance” on him and issued a related, false rules violation
3 report. (See id. at 3, 4.) As a result of the rules violation, Plaintiff lost visitation privileges. (Id.)
4 Plaintiff also states that Officer Urrutia failed to provide him a package because of the
5 grievance he filed, and that Sergeant Dominguez retaliated against him “for [his] last settlement.”
6 (Id. at 4, 5.) He also alleges that Correctional Officer Chavez “stated what he saw was the truth
7 and clearly he lied.” (Id. at 4.)
8 IV. DISCUSSION
9 A. Excessive Force
10 The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and
11 unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and
12 citation omitted). As courts have observed, “[p]ersons are sent to prison as punishment, not for
13 punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. Iowa) (quoting Battle v. Anderson,
14 564 F.2d 388, 395 (10th Cir. 1977)) (citation omitted). “Being violently assaulted in prison is
15 simply not part of the penalty that criminal offenders pay for their offenses against society.”
16 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citation omitted).
17 A correctional officer engages in excessive force in violation of the Cruel and Unusual
18 Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances,
19 and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith
20 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). Thus,
21 “whenever prison officials stand accused of using excessive physical force . . . , the core judicial
22 inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or
23 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In
24 making this determination, courts may consider “the need for application of force, the relationship
25 between that need and the amount of force used, the threat reasonably perceived by the
26 responsible officials, and any efforts made to temper the severity of a forceful response.” Id. at 7.
27 Plaintiff states cognizable excessive force claims against Defendants Agundez and
1 he was having a seizure. (Doc. 1 at 3.) Liberally construing his allegations, Plaintiff shows that
2 there was no need for the use of force because he was having a seizure, and thus the officers did
3 not use force to maintain security. Plaintiff therefore states excessive force claims that are
4 plausible on their face.1
5 B. Retaliation
6 A claim of First Amendment retaliation has five elements. Watison v. Carter, 668 F.3d
7 1108, 1114 (9th Cir. 2012). First, a plaintiff must allege that he engaged in protected activity. Id.
8 For example, filing an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th
9 Cir. 2005), as is the right to access the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977); see
10 also Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that
11 the defendant took adverse action against him. Watison, 668 F.3d at 1114 (citation omitted).
12 “Third, the plaintiff must allege a causal connection between the adverse action and the protected
13 conduct.” Id. In other words, the plaintiff must claim the defendant subjected him to an adverse
14 action because of his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the
15 plaintiff must allege that the official’s acts would chill or silence a person of ordinary firmness
16 from future [protected] activities.” Watison, 668 F.3d at 1114 (internal quotation marks and
17 citation omitted). “Fifth, the plaintiff must allege ‘that the prison authorities’ retaliatory action did
18 not advance legitimate goals of the correctional institution.’” Id. (quoting Rizzo, 778 F.2d at 532).
19 Plaintiff states a cognizable claim of retaliation against Defendant Dominguez. He alleges
20 he told Dominguez that he planned to “go[ ] to the courts” after the June 19, 2019 incident of
21 alleged excessive force. (Doc. 1 at 3.) He further alleges that, in response, Dominguez planted an
22 “unknown substance” on him and issued a false rules violation report. (See id. at 3, 4.) Plaintiff
23 thus adequately alleges that Dominguez took adverse action against him in response to his
24 engagement in protected conduct.
25 Plaintiff does not state a cognizable retaliation claim against Defendant Chavez. His only
26 allegation with respect to Chavez is that the officer “stated what he saw was the truth and clearly
27 he lied.” (Id. at 4.) As an initial matter, it is unclear what Plaintiff means by “stated what he saw
1 was the truth” or in what context Chavez made this statement. More to the point, this threadbare
2 allegation is insufficient to show that Chavez took adverse action against him due to his
3 engagement in protected activity.
4 Plaintiff also fails to state a cognizable retaliation against Defendant Urrutia. His single-
5 sentence allegation that Urrutia failed to provide him a package in April 2020, (id.), is insufficient
6 to show that the officer took such action because of the grievance Plaintiff filed for the June 19,
7 2019 incident of alleged excessive force.
8 C. Due Process
9 1. Liberty
10 The Fourteenth Amendment protects persons from deprivations of life, liberty, or property
11 without due process of law. U.S. Const. amend. XIV. Protected liberty interests may arise both
12 from the Constitution or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations
13 omitted). “A state may create a liberty interest through statutes, prison regulations, and policies.”
14 Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013) (citation omitted).
15 When a protected liberty interest is implicated, the Due Process Clause provides certain
16 procedural guarantees. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). The
17 amount of process or specific procedures required vary by context and the particular interest at
18 stake. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
19 When a protected interest is at stake, a prisoner charged with a disciplinary violation is
20 entitled to (1) advance written notice of the charge, (2) an opportunity to present evidence and
21 call witnesses, unless calling witnesses would interfere with institutional security, and (3) a
22 written statement by the factfinder of the evidence relied upon and the reason(s) for the discipline.
23 Wolff v. McDonnell, 418 U.S. 539, 564-570 (1974); see also Serrano v. Francis, 345 F.3d 1071,
24 1077 (9th Cir. 2003). In addition, a disciplinary decision must be supported by “some evidence.”
25 See Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
26 Plaintiff does not state a cognizable due process claim regarding the rules violation report
27 (RVR) issued against him. He does not allege that Defendants denied him adequate procedures
1 by “some evidence.” However, as explained in the previous subsection, Plaintiff’s allegations are
2 sufficient to state a cognizable retaliation claim based on the RVR.
3 2. Property
4 The Due Process Clause also protects prisoners from being deprived of property without
5 due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Thus, “[a]n authorized,
6 intentional deprivation of property is actionable under the Due Process Clause.” Christ v. Hartley,
7 No. 1:11-cv-00705-AWI-DLB, 2013 WL 127737, at *3 (E.D. Cal. 2013) (citing Hudson v.
8 Palmer, 468 U.S. 517, 532 (1984)) (citations omitted). “An authorized deprivation is one carried
9 out pursuant to established state procedures, regulations, or statutes.” Christ, 2013 WL 127737, at
10 *3 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)) (citation omitted).
11 However, “an unauthorized intentional deprivation of property by a state employee does
12 not constitute a violation of . . . Due Process . . . if a meaningful postdeprivation remedy for the
13 loss is available.” Hudson, 468 U.S. at 533 (emphasis added). “California [l]aw provides an
14 adequate post-deprivation remedy for any property deprivations.” Barnett v. Centoni, 31 F.3d
15 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). That is, state prisoners “may
16 file suit in state court pursuant to California Government Code §§ 900, et seq., to seek recovery
17 for a tort” committed by a state employee. Boswell v. Perez, No. 1:09-cv-00822-MJS, 2011 WL
18 4500010, at *2 (E.D. Cal. 2011) (citations omitted).
19 To the extent Plaintiff raises a due process claim regarding Officer Urrutia’s refusal to
20 provide him a package in April 2020, Plaintiff provides insufficient facts to state a cognizable
21 claim. Plaintiff provides no details regarding the circumstances of the incident. (See Doc. 1 at 4.)
22 In other words, Plaintiff does not provide “sufficient factual matter . . . to state a claim that is
23 plausible on its face.” See Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).
24 V. CONCLUSION AND RECOMMENDATIONS
25 For the reasons set forth above, Plaintiff’s complaint states cognizable claims of excessive
26 force against Defendants Agundez and Urrutia, and a cognizable claim of retaliation against
27 Defendant Dominguez, but its remaining claims are not cognizable. Although the Court
1 indicated that he does not intend to file an amended complaint. (Doc. 17.) Plaintiff therefore
2 stands on his pleading. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004).
3 Accordingly, the Court RECOMMENDS that:
4 1. Defendant Chavez be DISMISSED; and,
5 2. The claims in Plaintiff’s complaint be DISMISSED, except for the claims of
6 excessive force against Defendants Agundez and Urrutia and the claim of retaliation
7 against Defendant Dominguez, pursuant to 42 U.S.C. § 1983.
8 These Findings and Recommendations will be submitted to the United States District
9 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of
10 service of these Findings and Recommendations, Plaintiff may file written objections with the
11 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and
12 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in
13 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
14 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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17 Dated: May 20, 2021 _ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE
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