William Allen Garrett v. Josie Gastello

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WILLIAM ALLEN GARRETT, ) Case No. CV 20-4057-PA (JEM)

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Plaintiff, )

13 ) MEMORANDUM AND ORDER

v. ) DISMISSING COMPLAINT WITH

14 ) LEAVE TO AMEND

JOSIE GASTELLO, et al., )

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Defendants. )

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17 On May 1, 2020, William Allen Garrett (“Plaintiff”), a state prisoner proceeding pro

18 se, filed a complaint pursuant to 42 U.S.C. § 1983 (“Complaint”).

19 SCREENING STANDARDS

20 In accordance with the provisions of the Prison Litigation Reform Act of 1995, the

21 Court must screen the Complaint to determine whether the action: (1) is frivolous or

22 malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary

23 relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); 42

24 U.S.C. § 1997e(c)(1). This screening is governed by the following standards:

25 A complaint may be dismissed as a matter of law for failure to state a claim for two

26 reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has

27 alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't,

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1 which relief may be granted, allegations of material fact are taken as true and construed in

2 the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

3 1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual

4 allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of

5 a civil rights complaint may not supply essential elements of the claim that were not initially

6 pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

7 Although a complaint "does not need detailed factual allegations" to survive

8 dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic

9 recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,

10 550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in

11 Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations

12 sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely

13 possible or conceivable. Id. at 557, 570.

14 Simply put, the complaint must contain "enough facts to state a claim to relief that is

15 plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility when the

16 complaint presents enough facts “to draw the reasonable inference that the defendant is

17 liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability

18 requirement, but “it asks for more than a sheer possibility that a defendant has acted

19 unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops

20 short of the line between possibility and plausibility. Id.

21 In a pro se civil rights case, the complaint must be construed liberally to afford

22 plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621,

23 623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured,

24 pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an

25 opportunity to amend prior to the dismissal of an action. Id. at 623. Only if it is absolutely

26 clear that the deficiencies cannot be cured by amendment should the complaint be

27 dismissed without leave to amend. Id.; Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

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1 After careful review and consideration of the Complaint under the relevant standards

2 and for the reasons discussed below, the Court finds that the Complaint must be

3 DISMISSED WITH LEAVE TO AMEND.

4 ALLEGATIONS OF THE COMPLAINT

5 Plaintiff names as Defendants in this action Warden Josie Gastello, Captain M.

6 Blackford, Lieutenant C. Garino, Sergeant R. Siordia, and Correctional Officer R. Day, all of

7 whom are officers at the California Men’s Colony-East (“CMC-East”) in San Luis Obispo,

8 California, and are sued in their individual and official capacities. (Complaint at 1, 4-5.)1

9 It appears that Plaintiff is attempting to assert claims based on the adjudication of

10 four rules violation reports (“RVRs”), which were issued against him between July and

11 September 2019 while he was incarcerated at CMC-East. (Id. at 6-8, 13-18.)

12 Plaintiff alleges the following:

13 On July 1, 2019, Plaintiff received a RVR for disrespect without potential for

14 violence/disruption, in which it was alleged that Plaintiff used disrespectful language

15 towards a recreational therapist. (Id. at 14, 30.) On July 16, 2019, a clinician administered

16 a mental health assessment to determine if Plaintiff was suffering from a mental illness at

17 the time of the July 1 RVR. The mental health assessor indicated that Plaintiff’s mental

18 illness contributed at least in part to the behavior that led to the RVR. (Id. at 14.) Plaintiff

19 requested an exculpatory witness, Correctional Officer J. Gomez, testify at the RVR

20 hearing, but Sergeant Moreno denied the request on the grounds that it was an

21 administrative RVR and Plaintiff was not allowed witnesses or staff assistance. (Id. at 14,

22 30.) Plaintiff was found guilty of the disciplinary charge and assessed with confinement to

23 his quarters for five weekends. (Id. at 31.) The hearing report specifically indicates that the

24 hearing officer considered the mental health assessment. (Id. at 30.)

25 On July 19, 2019, Plaintiff experienced auditory hallucinations, which produced

26 severe anxiety and paranoia and caused plaintiff to shout while in his cell. He received a

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1 RVR for disrespect with the potential for violence/disruption. Defendant R. Day told Plaintiff

2 he would keep receiving RVRs to keep him out of trash cans and would have Plaintiff

3 transferred. (Id. at 15.) Plaintiff asked to have “the entire Second Floor of Building Eight as

4 witnesses, as they would say no one was on the tier” at the time of the incident, but his

5 request was denied because he could not provide specific names and CDCR numbers for

6 any potential witnesses. (Id. at 32.) Plaintiff was found guilty of the disciplinary charge and

7 assessed 30 days loss of credits and 40 hours of extra duty. (Id. at 32-33.) The hearing

8 officer specifically indicated that the hearing officer considered the mental health

9 assessment. (Id. at 32-33.)

10 On August 8, 2019, Plaintiff received a RVR for being out of bounds. The RVR

11 alleged that plaintiff had walked to the program office and dug through the trash. (Id. at 15.)

12 On August 27, 2019, a mental health assessment was conducted, and the assessor found

13 Plaintiff’s mental illness did not play a significant role in his behavior. This was contrary to

14 Plaintiff’s mental health records, which documented that searching through trash was a

15 symptom of compulsion related to Plaintiff’s mental illness. (Id. at 15.) The disposition of

16 the August 8 RVR is unclear.

17 On September 8, 2019, Defendant Day observed Plaintiff digging through the trash.

18 Day told Plaintiff he would receive a RVR. Plaintiff resisted verbally, and Day told

19 Correctional Officer Lewis to take Plaintiff to a holding cell. Plaintiff continued to engage

20 verbally with Day, who then told Lewis to take Plaintiff to the ground. Lewis told Defendant

21 Siordia that Plaintiff had bumped shoulders with him. Plaintiff received a RVR for battery on

22 a peace officer. (Id. at 16.) On September 16, 2019, a mental health assessment was

23 conducted. The assessor concluded that Plaintiff’s mental illness contributed to his

24 behavior and recommended that the hearing officer take into consideration the significant

25 decompensation of Plaintiff’s mental illness and that the RVR be documented in an

26 alternate manner. (Id. at 17.) Defendant Garino ignored this recommendation “without

27 providing sufficient explanation despite numerous mental health assessments and

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1 request to have his treating psychologist, Dr. Heidler, provide exculpatory testimony

2 regarding Plaintiff’s mental illness. (Id. at 7, 17-18.) Dr. Heidler’s testimony was denied

3 pursuant to Cal. Code Regs., tit. 15, § 3315(e)(1)(A), on the grounds that the appearance

4 would endanger the witness. (Id. at 32.) Plaintiff alleges that Defendant Blackford also

5 ignored the mental health assessment and determined the RVR was to be classified as

6 “serious without providing sufficient explanation which is required.” (Id. at 7, 17.) However,

7 the hearing report clearly states that the mental health assessment was considered by the

8 hearing officer. (Id. at 39.) Plaintiff was found guilty of the disciplinary charge and

9 assessed 150 days loss of credits. (Id. at 39-40.)

10 In each of the incidents that led to a RVR, “Plaintiff displayed bizarre behavior as

11 documented in his mental health assessments. Despite clinical recommendations to the

12 contrary, hearing officers continued to assess penalties. Plaintiff[’s] mental illness clearly

13 contributed to the behavior that led to these four RVRs. Plaintiff continued to receive

14 punishment, the incidents became progressively more serious until eventually clinicians

15 recognized Plaintiff[’s] decompensation for what it was and referred Plaintiff to a higher level

16 of care.” (Id. at 13-14.)

17 Plaintiff asserts the following claims:

18 Defendants violated Plaintiff’s “right to be free from cruel and unusual punishment for

19 Plaintiff[’s] known mental illness in violation of the Eighth Amendment.” (Id. at 8.)

20 Defendants disregarded the mental health assessments and inflicted punishment for

21 Plaintiff’s mental illness. (Id. at 8, 23-24.)

22 Defendants violated Plaintiff’s due process rights by refusing to allow Plaintiff to call

23 witnesses at the RVR hearings and failing to consider the mental health assessments. (Id.

24 at 19-20.)

25 Defendants violated Plaintiff’s equal protection rights by subjecting Plaintiff to

26 harassment and punishment, including issuing cumulative RVRs, because of Plaintiff’s

27 mental illness and by ignoring recommended treatment and care. (Id. at 21-22.)

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1 DISCUSSION

2 I. THE OFFICIAL-CAPACITY CLAIMS ARE BARRED BY THE ELEVENTH

3 AMENDMENT

4 All of the named Defendants are California Department of Corrections and

5 Rehabilitation (“CDCR”) officers, who are sued in their individual and official capacities.

6 (Complaint at 4-5.) Plaintiff”s claims against Defendants in their official capacities are

7 barred by the Eleventh Amendment.

8 In Will v. Michigan Department of State Police, 491 U.S. 58, 64-66 (1989), the

9 Supreme Court held that states, state agencies, and state officials sued in their official

10 capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. The

11 Supreme Court reasoned that a suit against a state official in his or her official capacity is a

12 suit against the official's office, and as such It appears that Plaintiff was found guilty of the

13 disciplinary charge, but it is unclear what penalties were assessed. is no different from a

14 suit against the State itself, which would be barred by the Eleventh Amendment. See id.;

15 see also Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); Stivers v. Pierce, 71 F.3d

16 732, 749 (9th Cir. 1995). “[T]he [E]leventh [A]mendment bars actions against state officers

17 sued in their official capacities for past alleged misconduct involving a complainant's

18 federally protected rights, where the nature of the relief sought is retroactive, i.e., money

19 damages . . . .” Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). However, the Eleventh

20 Amendment “does not preclude a suit against state officers for prospective relief from an

21 ongoing violation of federal law.” Children's Hospital and Health Ctr. v. Belshe, 188 F.3d

22 1090, 1095 (9th Cir.1999).

23 To overcome the Eleventh Amendment bar on federal jurisdiction over suits by

24 individuals against a State and its instrumentalities, either the State must have consented to

25 waive its sovereign immunity or Congress must have abrogated it; moreover, the State's

26 consent or Congress' intent must be “unequivocally expressed.” See Pennhurst State

27 School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). While California has consented

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1 not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., Los

2 Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon,

3 473 U.S. 234, 241 (1985) (holding that Art. III, § 5 of the California Constitution did not

4 constitute a waiver of California's Eleventh Amendment immunity). Furthermore, Congress

5 has not abrogated State sovereign immunity against suits under 42 U.S.C. § 1983.

6 Here, Plaintiff seeks monetary damages against Defendants in their official

7 capacities as CDCR officers. (Complaint at 9, 25-26.) Plaintiff’s official capacity claims

8 against Defendants are tantamount to claims against the State of California, which are

9 barred by the Eleventh Amendment. If Plaintiff chooses to file an amended complaint, he

10 should not sue Defendants in their official capacities.

11 II. THE COMPLAINT FAILS TO STATE AN INDIVIDUAL CAPACITY CLAIM AGAINST

12 WARDEN GASTELLO

13 In a Section 1983 action, a supervisory official cannot be held liable under a theory

14 of respondeat superior or vicarious liability. See, e.g., Iqbal, 556 U.S. at 676. A

15 supervisor’s mere knowledge of the unconstitutional conduct of a subordinate does not

16 amount to the supervisor’s own violation of the Constitution. See id. at 677 (rejecting this

17 theory of supervisory liability). “Absent vicarious liability, each Government official, his or

18 her title notwithstanding, is only liable for his or her own misconduct.” Id.

19 Under Section 1983, a supervisor may be liable if a plaintiff demonstrates either: (1)

20 his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal

21 connection between the supervisor’s wrongful conduct and the constitutional violation.

22 Edgerly v. City & County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010); MacKinney v.

23 Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995). Liability also can be established if the

24 supervisor set in motion a series of acts by others which the actor knows or reasonably

25 should know would cause others to inflict the constitutional injury. Johnson, 588 F.2d at

26 743-44. However, “[v]ague and conclusory allegations of official participation in civil rights

27 violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. Thus,

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1 absent a showing of personal involvement in the constitutional deprivation, or if there was a

2 sufficient causal connection between the Warden’s wrongful conduct and the constitutional

3 violation. See Redman v. Warden of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991).

4 Plaintiff’s claims against Gastello in her individual capacity are based solely on her

5 supervisory position as Warden of CMC. Plaintiff alleges no facts demonstrating that

6 Gastello was personally involved in or individually caused the alleged constitutional

7 deprivations. Thus, Plaintiff has failed to state a civil rights claim against Gastello in her

8 individual capacity.

9 If Plaintiff chooses to file an amended complaint, he should not name Gastello as a

10 Defendant unless he can truthfully allege facts demonstrating that Gastello was personally

11 involved in causing the alleged constitutional violations.

12 III. THE COMPLAINT FAILS TO STATE A DUE PROCESS CLAIM

13 Plaintiff alleges that the hearings on the RVRs violated his due process rights

14 because prison officials failed to allow him to present witnesses and failed to consider the

15 recommendations of the mental health assessments. (Complaint at 19-20.)

16 Prisoners subjected to disciplinary action are entitled to certain procedural

17 protections under the Due Process Clause, although they are not entitled to the full panoply

18 of rights afforded to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556

19 (1974); see also Superintendent v. Hill, 472 U.S. 445, 455-456 (1985); United States v.

20 Segal, 549 F.2d 1293, 1296-99 (9th Cir. 1977) (prison disciplinary proceedings command

21 the least amount of due process along the prosecution continuum).

22 Prison disciplinary actions are subject to the following procedural requirements under

23 Wolff: (1) written notice of the charges; (2) a hearing, with at least 24-hours advance notice;

24 (3) a written statement by the fact finders of the evidence relied on and the reasons for

25 taking disciplinary action; (4) the prisoner's right to call witnesses in his or her defense, if

26 doing so would not be unduly hazardous to institutional safety or correctional goals; and (5)

27 legal assistance to prisoners who are illiterate or whose issues are particularly complex.

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1 Prison officials are required to call witnesses requested by the prisoner for a serious

2 rules violation unless the official conducting the hearing denies the request for one of the

3 following reasons: the witness’s appearance would endanger him or her, the presiding

4 official determines that the witness has no relevant or additional information, or the witness

5 is unavailable. Cal. Code Regs., tit. 15, § 3315(e)(1). The reasons for denial must be

6 documented on the completed RVR. Cal. Code Regs., tit. 15, § 3315(e)(2).

7 Plaintiff claims that his due process rights were violated when he was denied the

8 right to call witnesses in his defense and when the hearing officer failed to follow the

9 recommendations of the mental health assessments. Plaintiff has failed to state a due

10 process claim based on the facts alleged.

11 As to the denial of witnesses, there is no indication that the hearing officer failed to

12 comply with the applicable regulations. As to the July 1 RVR, it was not a serious rule

13 violation to which the requirements of Cal. Code Regs., tit. 15, § 3315 would apply. As to

14 the July 19 RVR, Plaintiff was unable to identify any particular witnesses whose testimony

15 he required. As to the September 8 RVR, Plaintiff’s request for Dr. Heidler’s testimony was

16 denied on the basis that it would endanger the witness. This denial was articulated in the

17 hearing report, as required by prison regulations. Accordingly, there does not appear to be

18 a due process violation under Wolff.

19 As to the alleged failure to consider the mental health assessments, this is

20 contradicted by the record, which indicates that the hearing officer specifically

21 acknowledged and considered the mental health assessments regarding the July 1, July 19,

22 and September 8 RVRs. (See Complaint at 30, 32, 39.) The record appears to confirm

23 that the hearing officer provided a written statement of the evidence relied on and the

24 reasons for the disciplinary action, as required by Wolff.

25 Thus, Plaintiff has failed to allege facts sufficient to state a due process claim.

26 Although it appears that amendment may be futile, in light of Plaintiff’s pro se status he

27 should be granted leave to amend.

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1 IV. THE COMPLAINT FAILS TO STATE AN EQUAL PROTECTION CLAIM

2 Plaintiff alleges that Defendants violated his right to equal protection by subjecting

3 him to “harassment and cum[]ulative RVRs for Plaintiff[’s] known mental illness,” “ignoring

4 recommended treatment and care” by mental health professionals, and denying him

5 exculpatory witnesses at the RVR hearings. (Complaint at 21-22.)

6 The Fourteenth Amendment's Equal Protection Clause is essentially a direction that

7 all persons similarly situated should be treated alike. City of Cleburne, Tex. v. Cleburne

8 Living Center, 473 U.S. 432, 439 (1985). A plaintiff can establish an equal protection claim

9 either by showing that he was intentionally discriminated against based on his membership

10 in a protected class, see Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or

11 by showing that similarly situated individuals were intentionally treated differently without a

12 rational basis for the difference in treatment, see Village of Willowbrook v. Olech, 528 U.S.

13 562, 564 (2000); Engquist v. Oregon Dep't of Agriculture, 553 U.S. 591, 601-02 (2008).

14 Plaintiff has not alleged facts demonstrating that he is a member of a protected

15 class, as neither prisoners nor mentally ill persons qualify as a protected class for equal

16 protection purposes. See City of Cleburne, 473 U.S. at 445-46; see also Heller v. Doe by

17 Doe, 509 U.S. 312, 321 (1993).

18 Plaintiff also has not alleged facts demonstrating that similarly situated individuals

19 were intentionally treated differently than him without a rational basis for the difference in

20 treatment.

21 Thus, Plaintiff has failed to allege any facts that would support an equal protection

22 claim. Although it appears that amendment may be futile, in light of Plaintiff’s pro se status

23 he should be granted leave to amend.

24 V. THE COMPLAINT FAILS TO STATE AN EIGHTH AMENDMENT CLAIM

25 Plaintiff alleges that the “cum[]ulative punishment” he received for his “known mental

26 illness” constituted cruel and unusual punishment in violation of the Eighth Amendment.

27 (Complaint at 23-25.)

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1 A sentence that is significantly disproportionate to the crime of which the defendant

2 was convicted may violate the Eighth Amendment's prohibition on cruel and unusual

3 punishment. See Solem v. Helm, 463 U.S. 277, 303-04 (1983). Plaintiff, however, does

4 not contend that his prison sentence is disproportionate to his conviction offense. At best,

5 he contends that the Eighth Amendment is violated by the delay in his release date as a

6 result of his loss of good time credits. Plaintiff has no constitutional right to be released

7 prior to the expiration of his sentence, see Greenholtz v. Inmates of the Nebraska Penal

8 and Correctional Complex, 442 U.S. 1, 7 (1979), and the disallowance of 150 days of good

9 time credits resulting from the September 8 RVR and 30 days of good time credits resulting

10 from the July 19 RVR would not extend his original sentence. Even assuming that the

11 Eighth Amendment applies to disciplinary sanctions, the sanction imposed here is not so

12 grossly disproportionate or extreme as to violate the Eighth Amendment. See Rummel v.

13 Estelle, 445 U.S. 263, 272 (1980) ("Outside the context of capital punishment, successful

14 challenges to the proportionality of particular sentences have been exceedingly rare."); see

15 also Harmelin v. Michigan, 501 U.S. 957, 1001, 1111 (1991) (Eighth Amendment violates

16 based on disproportionate sentences are “exceedingly rare” and apply only to “extreme”

17 cases). Moreover, there is nothing to indicate that the sanctions dramatically departed from

18 accepted standards for conditions of confinement, created inhumane conditions, deprived

19 Plaintiff of basic necessities, or failed to protect his health and safety. See Overton v.

20 Bazzetta, 539 U.S. 126, 136-37 (2003).

21 Plaintiff has failed to allege any facts that would support an Eighth Amendment

22 claim. Although it appears that amendment may be futile, in light of Plaintiff’s pro se status

23 he should be granted leave to amend.

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25 For the reasons set forth herein, the Complaint is DISMISSED WITH LEAVE TO

26 AMEND.

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1 If Plaintiff desires to pursue this action, he is ORDERED to file a First Amended

2 Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies

3 discussed above.

4 If Plaintiff chooses to file a First Amended Complaint, it should: (1) bear the docket

5 number assigned in this case; (2) be labeled "First Amended Complaint"; (3) be filled out

6 exactly in accordance with the directions on the form; and (4) be complete in and of itself

7 without reference to the previous complaints or any other pleading, attachment, or

8 document. The Clerk is directed to provide Plaintiff with a blank Central District of California

9 civil rights complaint form, which Plaintiff must fill out completely and resubmit.

10 Plaintiff is advised that he should not assert claims for which he lacks factual and

11 legal support. Rather, he should only assert a particular claim if he can truthfully allege

12 facts that would demonstrate a constitutional violation under the standards set forth above.

13 Plaintiff is admonished that, if he fails to file a First Amended Complaint by the

14 deadline set herein, the Court may recommend that this action be dismissed for

15 failure to prosecute and failure to comply with a Court order.

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18 DATED: July 13, 2020 /s/ John E. McDermott

JOHN E. MCDERMOTT

19 UNITED STATES MAGISTRATE JUDGE

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