Raul Cervantes Valenzuela v. V. Torres

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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10 RAUL CERVANTES VALENZUELA, Case No. CV 19-7559-CJC (KK)

11 Plaintiff,

12 v. ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND

13 V. TORRES, ET AL.,

14 Defendants.

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17 I.

18 INTRODUCTION

19 Plaintiff Raul Cervantes Valenzuela (“Plaintiff” or “Cervantes”), proceeding

20 pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983

21 (“Section 1983”) and the Americans with Disabilities Act (“ADA”). As discussed

22 below, the Court dismisses the Complaint with leave to amend.

23 II.

24 ALLEGATIONS IN THE COMPLAINT

25 On August 29, 2019, Cervantes, currently an inmate at California State Prison –

26 Los Angeles County in Lancaster, California (“CSP-LAC”), constructively filed1 a

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Under the “mailbox rule,” when a pro se inmate gives prison authorities a

1 complaint (“Complaint”) pursuant to Section 1983 and the ADA against defendants

2 V. Torres, D. Moisa, and Sgt. Villalobos (“Defendants”). ECF Docket No. (“Dkt.”)

3 1, Compl.2 Cervantes does not state whether he sues Defendants in their individual

4 or official capacity. The Complaint appears to allege “false charges, retaliation, assault

5 and battery, [and] failure to prevent assault and battery (ADA)” claims. Id. at 7.

6 According to the Complaint, on April 13, 2019, Cervantes asked defendant

7 Torres, a correctional officer at CSP-LAC, to let him out of his cell so he could obtain

8 his seizure medications. Id. at 16. Defendant Torres responded that she was “getting

9 tire[d] of [Cervantes] having seizures everyday,” and then falsely accused Cervantes of

10 threating to kill her. Id. Defendant Torres then authored a Rules Violation Report

11 charging Cervantes with threatening to kill a public official alleging Cervantes stated,

12 “Torres you fucking bitch, I’m gonna kill you.” Id. at 8-9, 16. Cervantes also alleges

13 defendant Torres “instigated [defendant] Moisa to assault [and] batter” Cervantes. Id.

14 at 5.

15 On April 15, 2019, while walking to the dining hall, Cervantes alleges he was

16 approached by defendant Moisa, who asked Cervantes “now who is the bitch” and

17 proceeded to twist Cervantes’s right hand, handcuff him, and throw Cervantes against

18 the cafeteria wall, “knocking [Cervantes’s] seizure helmet off [his] head.” Id. at 16.

19 Defendant Moisa then threw Cervantes against a door in the gym and into the back of

20 a holding cage in the gym, causing cuts and bleeding on Cervantes’ chin and forehead.

21 Id. Cervantes claims defendant Moisa has been “assaultive” to prisoners with mental

22 and physical disabilities in the past and has been reported to the warden “twice by

23 class action attorneys.” Id. at 6, 18. Cervantes further alleges defendant Villalobos

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25 omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox

rule applies to § 1983 suits filed by pro se prisoners”). While Plaintiff did not date the

26 Complaint, see Compl. at 4, 17, it is marked as received by the Court on August 29,

2019. In the absence of a date indicating when Plaintiff gave prison authorities the

27 Complaint, the Court deems the Complaint filed on August 29, 2019.

1 witnessed the assault but “did nothing at to prevent” it despite knowing “[Cervantes]

2 could have a seizure.” Id. at 16. Cervantes claims defendant Villalobos was making

3 “funny comments” during the incident. Id. at 18. Cervantes was taken to a hospital

4 to be treated for cuts and seizures that resulted from being hit in the head. Id. at 17,

5 19. Cervantes alleges the assault “was committed [in] retaliation for filing a civil case

6 against an officer Burciaga”, id. at 19, referring to a prior case Cervantes filed in the

7 Eastern District of California on October 13, 2015. Id. at 15; see Cervantes v.

8 Williamson, et al., Case No. 2:15-cv-02138-KJM-DB, affirmed sub nom. Cervantes v.

9 Burciaga, 773 F. App’x 978, 979 (9th Cir. 2019). On April 16, 2019, Cervantes was

10 placed in administrative segregation (“ad-seg”) as a result of the Rules Violation

11 Report issued by defendant Torres and reviewed by defendant Villalobos. Id. at 17.

12 Cervantes does not state a request for specific relief. See id. at 4.

13 III.

14 STANDARD OF REVIEW

15 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court

16 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to

17 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to

18 state a claim on which relief may be granted, or seeks monetary relief against a

19 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see

20 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

21 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a

22 “short and plain statement of the claim showing that the pleader is entitled to relief.”

23 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for

24 screening purposes, a court applies the same pleading standard as it would when

25 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See

26 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

27 A complaint may be dismissed for failure to state a claim “where there is no

1 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In

2 considering whether a complaint states a claim, a court must accept as true all of the

3 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir.

4 2011). However, the court need not accept as true “allegations that are merely

5 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

6 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint

7 need not include detailed factual allegations, it “must contain sufficient factual matter,

8 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.

9 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

10 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it

11 “allows the court to draw the reasonable inference that the defendant is liable for the

12 misconduct alleged.” Id. The complaint “must contain sufficient allegations of

13 underlying facts to give fair notice and to enable the opposing party to defend itself

14 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

15 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,

16 however inartfully pleaded, must be held to less stringent standards than formal

17 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).

18 However, liberal construction should only be afforded to “a plaintiff’s factual

19 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d

20 339 (1989), and a court need not accept as true “unreasonable inferences or assume

21 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock

22 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).

23 If a court finds the complaint should be dismissed for failure to state a claim,

24 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith,

25 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it

26 appears possible the defects in the complaint could be corrected, especially if the

27 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106

1 be cured by amendment, the court may dismiss without leave to amend. Cato, 70

2 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

3 IV.

4 DISCUSSION

5 A. THE COMPLAINT FAILS TO SPECIFY THE CAPACITY IN

6 WHICH EACH DEFENDANT IS SUED OR SET FORTH THE

7 REQUESTED RELIEF

8 1. Applicable Law

9 Pursuant to Federal Rules of Civil Procedure 9(a) a pleading must allege a

10 party’s capacity to be sued “when required to show that the court has jurisdiction.”

11 Fed. R. Civ. P. 9(a). Additionally, pursuant to Federal Rule of Civil Procedure 8

12 (“Rule 8”), a complaint must contain “a demand for relief sought, which may include

13 relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a)(3).

14 Accordingly, a court may dismiss the complaint if it violates Rule 8. Knapp v. Hogan,

15 738 F.3d 1106, 1109 (9th Cir. 2013).

16 2. Analysis

17 Here, the Court cannot determine from the Complaint whether Cervantes is

18 attempting to sue defendants Torres, Moisa, and Villalobos in their individual

19 capacity, official capacity, or both. While, the Court has a duty to liberally construe a

20 pro se complaint, Woods, 525 F.3d at 889-90, the Complaint does not specify

21 whether Cervantes seeks injunctive or monetary relief. Thus, the Court cannot, for

22 example, construe a request for monetary damages as an indication Cervantes is suing

23 defendants in their individual capacity. See Cmty. House, Inc. v. City of Boise, Idaho,

24 623 F.3d 945, 966 (9th Cir. 2010) (monetary damages are not available from individual

25 defendants when they are sued in their official capacity, holding “qualified immunity

26 covers only defendants in their individual capacities”).

27 Moreover, the Complaint does not include “a demand for relief sought” as

1 whether he seeks monetary, injunctive, or other relief. See Compl. at 4. Accordingly,

2 the Complaint is subject to dismissal for failure to comply with Rule 8. See Knapp,

3 738 F.3d at 1109.

4 If Cervantes chooses to file a first amended complaint, he must clarify whether

5 he is suing each defendant in his or her individual capacity, official capacity, or both,

6 and provide a description of the relief he seeks.

7 B. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT

8 DUE PROCESS CLAIM AGAINST CLAIM AGAINST DEFENDANT

9 TORRES

10 1. Applicable Law

11 The Due Process Clause of the Fourteenth Amendment protects individuals

12 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A

13 liberty interest may arise from the Constitution itself, by reason of guarantees implicit

14 in the word ‘liberty,’ or it may arise from an expectation or interest created by state

15 laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed.

16 2d 174 (2005) (citations omitted). Due process analysis “proceeds in two steps: We

17 first ask whether there exists a liberty or property interest of which a person has been

18 deprived, and if so we ask whether the procedures followed by the State were

19 constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859,

20 178 L. Ed. 2d 732 (2011).

21 Courts have held prisoners have “no constitutionally guaranteed immunity

22 from being falsely or wrongly accused of conduct which may result in the deprivation

23 of a protected liberty interest,” but they do have “the right not to be deprived of a

24 protected liberty interest without due process of law.” Freeman v. Rideout, 808 F.2d

25 949, 951 (2d Cir. 1986); see also Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

26 1989) (finding inmate’s claims based upon falsity of charges brought by a prison

27 counselor did not state a constitutional claim). In order to establish the deprivation of

1 in which a State might conceivably create a liberty interest.” Sandin v. Conner, 515

2 U.S. 472, 486, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). In order to establish the

3 denial of procedural protections afforded by due process, a prisoner must allege denial

4 of the requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41

5 L. Ed. 2d 935 (1974), which include written notice, the right to call witnesses, the right

6 to present documentary evidence, and the right to have a written statement by the

7 factfinder as to the evidence relied upon and the reasons for the disciplinary action

8 taken. See Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003).

9 2. Analysis

10 Here, Cervantes appears to allege a Fourteenth Amendment due process claim

11 against defendant Torres for making “false charges,” Compl. at 7, and committing

12 “perjury”, id. at 18, in authoring a Rules Violation Report stating Cervantes threatened

13 to kill a public official. Id. at 7, 10. However, Cervantes has no due process right to

14 be free from false accusations. See Freeman, 808 F.2d at 951; see also Sprouse, 870

15 F.2d at 452. Additionally, while Cervantes alleges he was placed in ad-seg, such

16 placement fails to constitute an “atypical, significant deprivation in which a State

17 might conceivably create a liberty interest.” Sandin, 515 U.S. at 486 (holding

18 “segregated confinement did not present the type of atypical, significant deprivation

19 in which a State might conceivably create a liberty interest”). Finally, Cervantes has

20 not alleged he was denied the procedural protections set forth in Wolff.

21 Accordingly, Cervantes’ Fourteenth Amendment due process claim against

22 defendant Torres is subject to dismissal.

23 C. PLAINTIFF FAILS TO STATE A FIRST AMENDMENT

24 RETALIATION CLAIM AGAINST DEFENDANTS MOISA AND

25 VILLALOBOS

26 1. Applicable Law

27 Allegations of retaliation against a prisoner’s First Amendment rights to speech

1 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a viable claim

2 of First Amendment retaliation entails five basic elements: (1) the prisoner engaged in

3 protected conduct; (2) an assertion that a state actor took some adverse action against

4 an inmate; (3) the adverse action was “because of” the prisoner’s protected conduct;

5 (4) the adverse action chilled the inmate’s exercise of his First Amendment rights; and

6 (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v.

7 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). “Because direct evidence of

8 retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of

9 events from which retaliation can be inferred is sufficient to survive dismissal.”

10 Watison, 668 F.3d at 1114; Pratt, 65 F.3d at 808 (“[T]iming can properly be

11 considered as circumstantial evidence of retaliatory intent.”).

12 2. Analysis

13 Here, Cervantes appears to allege a First Amendment retaliation claim against

14 defendants Moisa and Villalobos, claiming “this act [the assault] was committed [in]

15 retaliation for filing a civil case against an officer Burciaga.” Compl. at 19. However,

16 Cervantes has not plausibly alleged that the assault by defendant Moisa or failure to

17 protect by defendant Villalobos occurred “because of” Cervantes’s filing of a lawsuit

18 over three years ago against a different correctional officer. Rhodes, 408 F.3d at 562,

19 567-68. Cervantes fails to allege defendants Moisa or Villalobos were even aware of

20 this prior lawsuit. See Quiroz v. Short, 85 F. Supp. 3d 1092, 1100 (N.D. Cal. 2015)

21 (holding that mere speculation defendants acted out of retaliation without any other

22 circumstantial evidence is not sufficient to show retaliatory motive).

23 In fact, Cervantes’s own allegations seem to suggest defendant Moisa assaulted

24 Cervantes because of the alleged threat Cervantes made to defendant Torres.

25 Cervantes alleges defendant Torres “instigated [defendant] Moisa to assault [and]

26 batter” Cervantes. Compl. at 5. Cervantes’s other allegations, including the fact that

27 he was approached by defendant Moisa only two days after the incident with

1 (presumably in response to the alleged “you’re a bitch” statement defendant Torres

2 alleged Cervantes made), suggest defendants Moisa and Villalobos were motivated by

3 the alleged incident with defendant Torres, not a prior lawsuit. Thus, Cervantes has

4 not plausibly alleged that either defendant Moisa or Villalobos retaliated against him

5 for filing a prior lawsuit against a different correctional officer.

6 Accordingly, Cervantes’s First Amendment retaliation claim against defendants

7 Moisa and Villalobos is subject to dismissal.

8 D. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER

9 THE ADA

10 1. Applicable Law

11 Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et

12 seq. prohibits discrimination on the basis of disability in the programs, services or

13 activities of a public entity. However, Title II of the ADA only affords causes of

14 action against public entities, 29 U.S.C. §§ 794, 794a; 42 U.S.C. § 12132; Miranda B. v.

15 Kitzhaber, 328 F.3d 1181, 1187 (9th Cir. 2003), and does not encompass public

16 officials sued in their individual capacities. Hayes v. Voong, 709 F. App’x 494, 495

17 (9th Cir. 2018)3; Roberts v. California Dep’t of Corr. & Rehab., No. EDCV 16-1929

18 CJC (JC), 2017 WL 3635175, at *9 (C.D. Cal. Aug. 22, 2017).

19 To state a claim for violation of Title II of the ADA, a plaintiff must show that

20 (1) he is a qualified individual with a disability; (2) he was excluded from participation

21 in or otherwise discriminated against with regard to a public entity’s services,

22 programs, or activities; and (3) such exclusion or discrimination was by reason of his

23 disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002), cert. denied, 537

24 U.S. 1105 (2003).

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1 2. Analysis

2 As an initial matter, as discussed above, Cervantes does not specify whether he

3 is suing each defendant in his or her individual or official capacity. However, to the

4 extent Cervantes asserts an ADA claim against any defendant in their individual

5 capacity, this claim fails because Title II of the ADA does “not authorize claims

6 against State officials in their individual capacities.” Hayes, 709 F. App’x at 495;

7 Roberts, 2017 WL 3635175, at *9.

8 Moreover, to the extent Cervantes asserts an ADA claim against any defendant

9 in their official capacity, this claim also fails. Cervantes does not clearly set forth any

10 facts giving rise to his ADA claim or specify which defendant(s) have violated his

11 rights under the ADA. Cervantes merely alludes to the ADA, see Compl. at 25, and

12 his seizure disorder, and alleges “false charges, retaliation, assault and battery, [and]

13 failure to prevent assault and battery (ADA)” claims. Id. at 7. Cervantes, therefore,

14 fails to allege sufficient facts from which to infer he was denied the benefits of

15 services, programs, or activities, or was otherwise discriminated against by the public

16 entity solely by reason of his disability. See, e.g., Hewitt v. Luis, No. 3:11-CV-00598-

17 RCJ, 2013 WL 4702266, at *9 (D. Nev. July 2, 2013), report and recommendation

18 adopted, No. 3:11-CV-00598-RCJ, 2013 WL 4710392 (D. Nev. Aug. 30, 2013)

19 (finding confiscating plaintiff’s cane for nine days could not support an ADA

20 discrimination claim because plaintiff’s claim sounded in medical negligence rather

21 than discriminatory denial of services, programs, or activities).

22 Accordingly, Cervantes’ ADA claim is subject to dismissal.

23 V.

24 LEAVE TO FILE FIRST AMENDED COMPLAINT

25 For the foregoing reasons, the Complaint is subject to dismissal. As the Court

26 is unable to determine whether amendment would be futile, leave to amend is granted.

27 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is

1 insufficient to state a particular claim should not be seen as dispositive of that claim.

2 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual

3 matter in his pleading, accepted as true, to state a claim to relief that is viable on its

4 face, Plaintiff is not required to omit any claim in order to pursue this action.

5 However, if Plaintiff asserts a claim in his First Amended Complaint that has been

6 found to be deficient without addressing the claim’s deficiencies, then the Court,

7 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned

8 district judge a recommendation that such claim be dismissed with prejudice for

9 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with

10 the district judge as provided in the Local Rules Governing Duties of Magistrate

11 Judges.

12 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the

13 service date of this Order, Plaintiff choose one of the following two options:

14 1. Plaintiff may file a First Amended Complaint to attempt to cure the

15 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a

16 blank Central District civil rights complaint form to use for filing the First

17 Amended Complaint, which the Court encourages Plaintiff to use.

18 If Plaintiff chooses to file a First Amended Complaint, he must clearly

19 designate on the face of the document that it is the “First Amended Complaint,” it

20 must bear the docket number assigned to this case, and it must be retyped or

21 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not

22 include new defendants or allegations that are not reasonably related to the claims

23 asserted in the Complaint. In addition, the First Amended Complaint must be

24 complete without reference to the Complaint, or any other pleading, attachment, or

25 document.

26 An amended complaint supersedes the preceding complaint. Ferdik v.

27 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat

1 leave to amend as to all his claims raised here, any claim raised in a preceding

2 complaint is waived if it is not raised again in the First Amended Complaint.

3 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).

4 The Court advises Plaintiff that it generally will not be well-disposed toward

5 another dismissal with leave to amend if Plaintiff files a First Amended Complaint

6 that continues to include claims on which relief cannot be granted. “[A] district

7 court’s discretion over amendments is especially broad ‘where the court has already

8 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty.

9 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at

10 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which

11 relief cannot be granted, the First Amended Complaint will be dismissed

12 without leave to amend and with prejudice.

13 2. Alternatively, Plaintiff may voluntarily dismiss the action without

14 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is

15 directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court

16 encourages Plaintiff to use if he chooses to voluntarily dismiss the action.

17 Plaintiff is explicitly cautioned that failure to timely respond to this

18 Order will result in this action being dismissed with prejudice for failure to

19 state a claim, or for failure to prosecute and/or obey Court orders pursuant to

20 Federal Rule of Civil Procedure 41(b).

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22 Dated: October 18, 2019

23 HONORABLE KENLY KIYA KATO

United States Magistrate Judge

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