“Veltrop’s failure to 6 intervene in order to stop Buckner’s beating . . . would provide an ample basis for a 7 jury to conclude that Veltrop . . . violated Buckner’s Eighth Amendment rights.”
How later courts described this case
- “Veltrop’s failure to 6 intervene in order to stop Buckner’s beating . . . would provide an ample basis for a 7 jury to conclude that Veltrop . . . violated Buckner’s Eighth Amendment rights.”
- stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”
- “[T]iming can properly be 5 considered as circumstantial evidence of retaliatory intent.”
Written by the judges who cited it.
The opinion
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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 FIRST
AMENDED COMPLAINT WITH
13 V. TORRES, ET AL., LEAVE TO AMEND
14 Defendants.
15
16
17 I.
18 INTRODUCTION
19 Plaintiff Raul Cervantes Valenzuela (“Plaintiff” or “Cervantes”), proceeding
20 pro se and in forma pauperis, filed a First Amended Complaint (“FAC”) pursuant to
21 42 U.S.C. § 1983 (“Section 1983”) and the Americans with Disabilities Act (“ADA”).
22 As discussed below, the Court dismisses the FAC with leave to amend.
23 II.
24 BACKGROUND
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
27
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 alleging “false charges, retaliation, assault and
3 battery, [and] failure to prevent assault and battery (ADA)” claims arising out of an
4 incident on April 13, 2019. ECF Docket No. (“Dkt.”) 1, Compl.
5 On October 18, 2019, the Court dismissed the Complaint with leave to amend,
6 finding it (a) failed to specify the capacity in which each defendant was sued and the
7 requested relief; (b) failed to state a Fourteenth Amendment due process claim against
8 defendant Torres for “false charges”; (c) failed to state a First Amendment retaliation
9 claim against defendants Moisa and Villalobos; and (d) failed to state a claim under the
10 ADA. Dkt. 17.
11 On October 24, 2019, Cervantes constructively filed the instant FAC.2 Dkt.
12 18, FAC. Cervantes sues V. Torres, D. Moisa, and Sgt. Villalobos (“Defendants”) in
13 their individual capacity. The allegations in the FAC appear to allege First and Eighth
14 Amendment claims arising out of incidents on October 21, 2019 and an unspecified
15 date.3
16 According to the FAC, on October 21, 2019, after Cervantes refused to
17 “withdraw [a] statement” regarding a prison account dispute, Cervantes was pepper
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19 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 Cervantes did not date
20 the 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 Cervantes gave prison authorities
21 the Complaint, the Court deems the Complaint filed on August 29, 2019.
2 The Court notes Cervantes has filed multiple letters with the Court, dkts. 15,
22 16, 19, 20, including a letter dated October 21, 2019, dkt. 21, which seeks to
“supplement” the FAC and describes an incident on October 21, 2019. Cervantes has
23 been previously advised that letters will be rejected pursuant to Local Rule 83-2.5.
Thus, as set forth in further detail below, if he chooses to proceed, Cervantes must
24 bring all claims in a single document captioned “Second Amended Complaint,” and
any allegations or facts presented in letters will not be considered.
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3 The Court notes Cervantes was previously ordered “not [to] include new
26 defendants or allegations that are not reasonably related to the claims asserted in the
Complaint.” Dkt. 17 at 11. Cervantes is expressly cautioned that if he chooses to file
27 a Second Amended Complaint, he may not change the nature of this suit by adding
new, unrelated claims and any attempt to do so will result in an order striking the
1 sprayed by officer Magdala.4 FAC at 3. Cervantes alleges defendant Torres then hit
2 Cervantes on his ribs and head. Id. Cervantes alleges officer Gray destroyed “all
3 personal property (ADA)” and officer Makarade was throwing Cervantes’s pictures
4 and other personal property around as defendant Villalobos observed. Id. at 7-8.
5 Cervantes alleges he was placed in administrative segregation and charged with assault
6 on a peace officer. Id. Cervantes alleges defendant Villalobos “owes Plaintiff the
7 right to be protected from assault from any employee” and to protect him from being
8 harmed. Id. at 5.
9 The FAC also alleges on an unspecified date,5 defendant Moisa assaulted
10 Cervantes when he ordered Cervantes to tuck in his shirt. Id. at 4. Cervantes alleges
11 that instead of writing Cervantes an RVR “for disobeying an order … [defendant
12 Moisa had] something else in mind evil intent first Amendment … he stood in front
13 of me and say now who is the bitch I … said I don’t know what you talking about and
14 when he started assaulting me I did not resist.” Id. at 4.
15 Cervantes appears to claim the assaults and destroying of his property were in
16 retaliation for Cervantes having filed a prior lawsuit, stating: “Sgt. Villalobos, D.
17 Moisa. V. Torres knew about my lawsuit because Attorney General Xavier Becerra is
18 the attorney for the State of California who attorney are for defendants of (CDCR) on
19 lawsuits.” Id. at 5.
20 Cervantes seeks compensatory damages.6 Id. at 4.
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22 4 It is unclear whether officer “Magdala” is officer “Makarade” as referred to
elsewhere in the FAC. See, e.g., FAC at 7.
23 5 It is unclear whether this is the same incident as the April 13, 2019 incident
described in the Complaint. However, Cervantes was cautioned that “[a]n amended
24 complaint supersedes the preceding complaint” and that “any claim raised in a
preceding complaint is waived if it is not raised again in the First Amended
25 Complaint.” See dkt. 17 at 11. If Cervantes intends to bring claims arising out of the
April 13, 2019 incident in his Second Amended Complaint, he must re-state them in
26 full.
27 6 Cervantes also seeks to “decrease from appointed magistrate (KK) and … a
[de] novo review by District Judge.” FAC at 8. However, magistrate judges have the
1 III.
2 STANDARD OF REVIEW
3 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court
4 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to
5 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to
6 state a claim on which relief may be granted, or seeks monetary relief against a
7 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see
8 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
9 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a
10 “short and plain statement of the claim showing that the pleader is entitled to relief.”
11 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for
12 screening purposes, a court applies the same pleading standard as it would when
13 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
14 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
15 A complaint may be dismissed for failure to state a claim “where there is no
16 cognizable legal theory or an absence of sufficient facts alleged to support a
17 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In
18 considering whether a complaint states a claim, a court must accept as true all of the
19 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir.
20 2011). However, the court need not accept as true “allegations that are merely
21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re
22 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint
23 need not include detailed factual allegations, it “must contain sufficient factual matter,
24 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.
25 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
26 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it
27 “allows the court to draw the reasonable inference that the defendant is liable for the
1 underlying facts to give fair notice and to enable the opposing party to defend itself
2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
3 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,
4 however inartfully pleaded, must be held to less stringent standards than formal
5 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).
6 However, liberal construction should only be afforded to “a plaintiff’s factual
7 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d
8 339 (1989), and a court need not accept as true “unreasonable inferences or assume
9 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock
10 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
11 If a court finds the complaint should be dismissed for failure to state a claim,
12 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith,
13 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it
14 appears possible the defects in the complaint could be corrected, especially if the
15 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106
16 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot
17 be cured by amendment, the court may dismiss without leave to amend. Cato, 70
18 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
19 IV.
20 DISCUSSION
21 A. PLAINTIFF FAILS TO STATE AN EIGHTH AMENDMENT CLAIM
22 AGAINST DEFENDANT VILLALOBOS
23 1. Applicable Law
24 “When prison officials use excessive force against prisoners, they violate the
25 inmates’ Eighth Amendment right to be free from cruel and unusual punishment.”
26 Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). “[A] prison official can violate
27 a prisoner’s Eighth Amendment rights by failing to intervene” in another official’s use
1 defendants’ motion for summary judgment where prison officials failed to intervene
2 when another official fired a shotgun at inmates) (citing Del Raine v. Williford, 32
3 F.3d 1024, 1038 (7th Cir. 1994) (“A failure of prison officials to act in such
4 circumstances suggests that the officials actually wanted the prisoner to suffer the
5 harm.”)); Buckner v. Hollins, 983 F.2d 119, 123 (8th Cir. 1993) (“Veltrop’s failure to
6 intervene in order to stop Buckner’s beating . . . would provide an ample basis for a
7 jury to conclude that Veltrop . . . violated Buckner’s Eighth Amendment rights.”)).
8 Vicarious liability, however, does not apply to Section 1983 actions, rather, “a
9 plaintiff must plead that each Government-official defendant, through the official’s
10 own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Hence,
11 a defendant may be held liable as a supervisor only “if there exists either (1) his or her
12 personal involvement in the constitutional deprivation, or (2) a sufficient causal
13 connection between the supervisor’s wrongful conduct and the constitutional
14 violation.” Starr, 652 F.3d at 1207 (internal quotation marks and citations omitted).
15 2. Analysis
16 Here, Cervantes appears to allege an Eighth Amendment claim against
17 defendant Villalobos, claiming defendant Villalobos “owes Plaintiff the right to be
18 protected from assault from any employee.” FAC at 5. Cervantes, however, fails to
19 allege any facts demonstrating defendant Villalobos failed to intervene in any of the
20 alleged assaultive incidents involving defendants Torres or Moisa. While Cervantes
21 states defendant Villalobos was “standing next to c/o D. Moisa outside in the main
22 northside [chow] hall,” id. at 2, it is unclear whether this was on the same or a
23 different date as the alleged assault by defendant Moisa. Additionally, Cervantes’s
24 description of the incident with defendant Moisa, id. at 4, does not mention defendant
25 Villalobos or a chow hall. Id. Thus, without facts to allege defendant Villalobos
26 witnessed, but failed to intervene in the alleged assault, this claim fails.
27 Similarly, Cervantes has not alleged facts demonstrating Villalobos knew of or
1 was throwing family pictures other personal property on front of Sgt. Villalobos and it
2 was permitted.” Id. at 8. However, Cervantes does not allege defendant Villalobos
3 witnessed defendant Torres hitting Cervantes on the ribs and head. See id. at 3.
4 Thus, without facts to allege defendant Villalobos witnessed, but failed to intervene in
5 the alleged assault, this claim fails.
6 Moreover, to the extent Cervantes alleges defendant Villalobos is responsible
7 for the actions of defendants Moisa and Torres under a supervisory liability theory,
8 this claim also fails. Cervantes alleges “Villalobos knew exactly prison officials and
9 supervisory official can be held liable if they observe or witness or are notif[ied] [of]
10 the use of force by staff… and they don’t do nothing about it.” Id. at 5. Cervantes,
11 however, fails to allege facts to infer any personal involvement by defendant
12 Villalobos, or a causal connection between defendant Villalobos’s conduct and the
13 alleged assaults. See Starr, 652 F.3d at 1207. Thus, Cervantes’s conclusory allegations
14 against defendant Villalobos are insufficient to establish individual liability under
15 Section 1983. See Hydrick, 669 F.3d at 942.
16 Accordingly, Cervantes’s Eighth Amendment claims against defendant
17 Villalobos are subject to dismissal.
18 B. PLAINTIFF FAILS TO STATE A FIRST AMENDMENT
19 RETALIATION CLAIM AGAINST DEFENDANTS
20 1. Applicable Law
21 Allegations of retaliation against a prisoner’s First Amendment rights to speech
22 or to petition the government may support a Section 1983 claim. See Pratt v.
23 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a viable claim
24 of First Amendment retaliation entails five basic elements: (1) the prisoner engaged in
25 protected conduct; (2) an assertion that a state actor took some adverse action against
26 an inmate; (3) the adverse action was “because of” the prisoner’s protected conduct;
27 (4) the adverse action chilled the inmate’s exercise of his First Amendment rights; and
1 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). “Because direct evidence of
2 retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of
3 events from which retaliation can be inferred is sufficient to survive dismissal.”
4 Watison, 668 F.3d at 1114; Pratt, 65 F.3d at 808 (“[T]iming can properly be
5 considered as circumstantial evidence of retaliatory intent.”).
6 2. Analysis
7 Here, Cervantes appears to allege a First Amendment retaliation claim against
8 defendants Torres, Moisa, and Villalobos, stating they “knew” of Cervantes’s lawsuit.
9 FAC at 5. Cervantes, however, fails to provide any facts to support this conclusory
10 allegation. Moreover, Cervantes has not plausibly alleged that the alleged assaults by
11 defendants Torres and Moisa occurred “because of” Cervantes’s filing of a lawsuit,
12 the subject or parties of which are not described. Rhodes, 408 F.3d at 562, 567-68.
13 Cervantes provides no facts to demonstrate a connection between a lawsuit and the
14 separate instances of assault he alleges. Thus, Cervantes has not plausibly alleged that
15 any Defendant retaliated against him for filing a prior lawsuit.
16 Accordingly, Cervantes’s First Amendment retaliation claim against Defendants
17 is subject to dismissal.
18 V.
19 LEAVE TO FILE SECOND AMENDED COMPLAINT
20 For the foregoing reasons, the FAC is subject to dismissal. As the Court is
21 unable to determine whether amendment would be futile, leave to amend is granted.
22 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is
23 advised that the Court’s determination herein that the allegations in the FAC are
24 insufficient to state a particular claim should not be seen as dispositive of that claim.
25 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual
26 matter in his pleading, accepted as true, to state a claim to relief that is viable on its
27 face, Plaintiff is not required to omit any claim in order to pursue this action.
1 found to be deficient without addressing the claim’s deficiencies, then the Court,
2 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned
3 district judge a recommendation that such claim be dismissed with prejudice for
4 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with
5 the district judge as provided in the Local Rules Governing Duties of Magistrate
6 Judges.
7 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
8 service date of this Order, Plaintiff choose one of the following two options:
9 1. Plaintiff may file a Second Amended Complaint to attempt to cure the
10 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a
11 blank Central District civil rights complaint form to use for filing the Second
12 Amended Complaint, which the Court encourages Plaintiff to use.
13 If Plaintiff chooses to file a Second Amended Complaint, he must clearly
14 designate on the face of the document that it is the “Second Amended Complaint,” it
15 must bear the docket number assigned to this case, and it must be retyped or
16 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not
17 include new defendants or allegations that are not reasonably related to the claims
18 asserted in the FAC. In addition, the Second Amended Complaint must be complete
19 without reference to the Complaint, FAC, or any other pleading, attachment, or
20 document.
21 An amended complaint supersedes the preceding complaint. Ferdik v.
22 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat
23 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff
24 leave to amend as to all his claims raised here, any claim raised in a preceding
25 complaint is waived if it is not raised again in the Second Amended Complaint.
26 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).
27 The Court advises Plaintiff that it generally will not be well-disposed toward
1 | that continues to include claims on which relief cannot be granted. “[A] district
2 | court’s discretion over amendments is especially broad ‘where the court has already
3 | given a plaintiff one or more opportunities to amend his complaint.”’ Ismail v. Cty.
4 | of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at
5 | 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on
6 | which relief cannot be granted, the Second Amended Complaint will be
7 | dismissed without leave to amend and with prejudice.
8 2. Alternatively, Plaintiff may voluntarily dismiss the action without
9 | prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is
10 | directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court
11 | encourages Plaintiff to use if he chooses to voluntarily dismiss the action.
12 Plaintiff is explicitly cautioned that failure to timely respond to this
13 | Order will result in this action being dismissed with prejudice for failure to
14 | state a claim, or for failure to prosecute and/or obey Court orders pursuant to
15 | Federal Rule of Civil Procedure 41(b).
16
17 | Dated: December 05, 2019 enh) he
18 HONORABLE KENLY KIYA KATO
19 United States Magistrate Judge
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