(PC) Avalos v. Kirchen-Rolph

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 VINCENT JOHNNY AVALOS, Case No. 1:21-cv-00084-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS ACTION FOR FAILURE TO

13 v.

STATE A CLAIM UPON WHICH RELIEF

14 SARA L. KIRCHEN-ROLPH, et al., CAN BE GRANTED

(Doc. 20)

15 Defendants.

16 FOURTEEN (14) DAY DEADLINE

17

Clerk of Clerk to assign a District Judge.

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19 Plaintiff Vincent Johnny Avalos is a state prisoner proceeding pro se and in forma

20 pauperis in this civil rights action brought under 42 U.S.C. § 1983. On November 20, 2022,

21 Plaintiff filed a first amended complaint (“FAC”) asserting constitutional and state law claims

22 against employees of the Riverside County Superior Court (“Superior Court”) in Indio,

23 California, and the Substance Abuse Treatment Facility (“SATF”) in Corcoran, California. (Doc.

24 20.) The Court has screened the first amended complaint and finds it fails to state a claim upon

25 which relief can be granted; therefore, the complaint must be dismissed pursuant to 28 U.S.C. §§

26 1915(e)(2)(B)(i)–(ii) and 28 § 1915A(b)(1). The Court further finds that amendment would be

27 futile and therefore recommends dismissal of this action with prejudice.

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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 prisoner raises claims that are

5 frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary

6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); 28

7 U.S.C. § 1915A(b). These provisions authorize the court to dismiss a frivolous in forma pauperis

8 complaint sua sponte. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on

9 frivolousness is appropriate where the claim is “based on an indisputably meritless legal theory”

10 or “whose factual contentions are clearly baseless.” Id. at 327. The Court must dismiss a

11 complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to support a

12 cognizable legal theory. O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (citing Vaden v.

13 Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006)).

14 II. PLEADING REQUIREMENTS

15 A. Federal Rule of Civil Procedure 8(a)

16 A complaint must contain “a short and plain statement of the claim showing that the

17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8(a)’s simplified pleading standard

18 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

19 513 (2002). The statement must give the defendant fair notice of the plaintiff’s claims and the

20 grounds supporting the claims. Id. at 512.

21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

22 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

23 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must

24 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

25 Id. (quoting Twombly, 550 U.S. at 570). Plausibility does not require probability, but it requires

26 more than the “sheer possibility” of a defendant’s liability. Id. (quoting Twombly, 550 U.S. at

27 556). A claim is plausible when the facts pleaded allow the court to make reasonable inferences

1 However, courts “are not required to indulge unwarranted inferences.” Metzler Inv. GMBH v.

2 Corinthian Colls., Inc., 540 F.3d 1049, 1064 (9th Cir. 2008).

3 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of

4 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). This liberal

5 pleading standard applies to a plaintiff’s factual allegations but not to his legal theories. Neitzke,

6 490 U.S. at 330 n.9. Moreover, a liberal construction of the complaint may not supply essential

7 elements of a claim not pleaded by the plaintiff. Bruns v. Nat’l Credit Union Admin., 122 F.3d

8 1251, 1257 (9th Cir. 1997). The mere possibility of misconduct and facts merely consistent with

9 liability is insufficient to state a cognizable claim. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret

10 Serv., 572 F.3d 962, 969 (9th Cir. 2009). Vague and conclusory allegations of official misconduct

11 are insufficient to withstand a motion to dismiss. Ivey v. Bd. of Regents of Univ. of Alaska, 673

12 F.2d 266, 268 (9th Cir. 1982).

13 Dismissal of a pro se complaint without leave to amend is proper only if it is “absolutely

14 clear that no amendment can cure the defect.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

15 2015) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212–13 (9th Cir. 2012)); see Cervantes v.

16 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“Although leave to amend

17 should be given freely, a district court may dismiss without leave where a plaintiff’s proposed

18 amendments would fail to cure the pleading deficiencies and amendment would be futile.”).

19 B. Linkage and Causation

20 Section 1983 provides a cause of action for the violation of constitutional or other federal

21 rights by persons acting under color of state law. See 42 U.S.C. § 1983. Section 1983 “is not itself

22 a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.”

23 Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Baker v. McCollan, 443 U.S. 137,

24 144 n.3 (1979)).

25 To state a claim under section 1983, a plaintiff must show a causal connection or link

26 between the actions of the defendants and the deprivation alleged to have been suffered by the

27 plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976). The Ninth Circuit has held that a

1 participates in another’s affirmative acts, or fails to perform an act which he is legally required to

2 do that causes the prisoner to suffer a deprivation of rights. Johnson v. Duffy, 588 F.2d 740, 743

3 (9th Cir. 1978) (citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). In addition to direct

4 participation, a government actor may be liable for “setting in motion a series of acts by others

5 which the actor knows or reasonably should know would cause others to inflict the constitutional

6 injury.” Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007)

7 (quoting Johnson, 588 F.2d at 743).

8 III. PLAINTIFF’S ALLEGATIONS AND CLAIMS

9 Plaintiff was convicted of attempted murder in the Superior Court for the County of

10 Riverside (“Superior Court” or “trial court”). (Doc. 20.) At his sentencing hearing around July

11 13–17, 2007, Plaintiff represented himself and was removed from the courtroom. (Id. at 10.) After

12 he was removed, Defendants Reed and Gonzalez, deputy clerks in the Superior Court, altered the

13 abstract of judgment and minute order to state: “Prior to release, submit to HIV/AIDS test purs

14 1202.1 PC/1202.6PC to be conducted by med staff w RSO.1 Results forwd to Clerk of Court for

15 distribtn . . . .” (Id.) The abstract of judgment wrongfully reflected convictions for sex offenses

16 for which Plaintiff was not convicted. Reed and Gonzalez knew or should have known that their

17 actions were illegal. (Id. at 11.)

18 Consequently, he sustained imposition of a sentence above the statutory maximum. This

19 unauthorized alteration of a legal document by Reed, Gonzalez, and the Superior Court “all

20 violated Plaintiff’s right to meaningful access to the sentencing court.” (Id. at 13.) These acts

21 were in retaliation for “invoking such rights to counsel on the day of his sentencing.” (Id. at 14,

22 24.) The altered abstract of judgment resulted in blood being taken from him by physical force,

23 and he suffered both physical and mental pain caused by the battery with the needle used to draw

24 blood. (Id. at 10.) The falsified abstract amounted to libel per se, slander, and calumny and was a

25 violation of the Tom Bane Civil Rights Act, California Civil Code § 52.1. (Id. at 10, 18.)

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1 “RSO” appears to refer to Riverside Sheriff’s Office. The actual name of the office is Riverside

County Sheriff. See Riverside County Sheriff, https://www.riversidesheriff.org (last visited Sept. 12,

1 On October 27, 2015, Defendant Kirchen-Rolph, a deputy clerk, sent a memorandum to

2 Defendant John Doe, Chief Medical Officer at CDCR; Defendant Rodriguez, correctional case

3 records analyst at SATF; and another correctional case records analyst at SATF.2 (Id. at 22.)

4 On March 28, 2017, Defendants John Doe and Jane Doe in the Administrative

5 Segregation Unit/Short Term Restricted Housing Unit (“ASU/STRHU”), handcuffed Plaintiff

6 and took him out of his cell. (Id. at 18.) When Plaintiff asked if he could refuse the blood draw,

7 they said he was not allowed to refuse because it was being taken pursuant to a court order. (Id.)

8 These staff took Plaintiff to a medical “cage” specifically designed for inmate blood draws

9 without handcuffs, which allowed an inmate to stick an arm through the tray slot for the blood

10 draw. (Id. at 20.) Instead, Defendants placed handcuffs on Plaintiff and forced him to submit to a

11 blood draw for HIV/AIDS without removing the handcuffs or allowing him to appeal a decision

12 for the blood draw. (Id. at 11, 18, 20–21) Plaintiff asserts that Defendants’ failure to first remove

13 the handcuffs constitutions deliberate indifference to Plaintiff’s serious medical need for a

14 “proper” blood draw. (Id. at 20, 22.) The forcible taking of his blood was a violation of

15 Plaintiff’s Fourteen Amendment right to substantive due process. (Id at 20.)

16 In “confidential correspondence” dated August 29, 2017, the correctional case records

17 manager from the California Department of Corrections and Rehabilitation (“CDCR”) inquired

18 about the testing requirement.3 (Id. at 11, 17.) This letter demonstrated that CDCR knew or

19 should have known the HIV/AIDS testing for a sexual offense was ordered in error. (Id. at 21.)

20 In an opinion dated January 10, 2019, the California Fourth District Court of Appeal

21 determined that the abstract of judgment erroneously required Plaintiff to submit to an

22 HIV/AIDS test. (Id. at 11, 13.) Therefore, the trial court did not have the authority to require

23 Plaintiff to submit to HIV testing while in prison, and the Court of Appeal ordered correction of

24 the abstract. (Id. at 13.)

25 Plaintiff initiated this action on January 21, 2021. (Doc. 1.) Plaintiff requested leave to file

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2 Plaintiff does not indicate the substance or nature of this memorandum. (Doc. 20 at 22.) This

27 defendant appears to be J. Ortiz. (See id. at 4.)

3 Plaintiff also alleges that Defendants Ortiz, Martinez, and Rodriguez wrote this letter. (Id. at 17,

1 an amended complaint, which the Court granted. (Docs. 17, 18.) In the amended complaint,

2 Plaintiff names as defendants:

3 1. Sara L Kirchen-Rolph, Deputy Clerk and Court Officer, Superior Court,

4 County of Riverside;

5 2. Megan Brinkmeyer, Staff Services Analyst, California Department of Justice;

6 3. Carol Reed, Deputy Clerk of Court, Superior Court, County of Riverside;

7 4. C. Samareta, Supervising. Clinical Lab Technologist, SATF;

8 5. Michelle Loyd, Supervising Clinical Lab Technologist, SATF;

9 6. J. Ortiz, Correctional Case Records Manager, SATF;

10 7. A. Martinez, Correctional Case Records Analyst, SATF;

11 8. Stephanie Rodriguez, Correctional Case Records Analyst, SATF;

12 9. John or Jane Doe, Chief Medical Office, SATF;

13 10. Godwin Ugwueze, laboratory staff or doctor, SATF;

14 11. John Doe, administrative segregation unit officer at SATF;

15 12. Stu Sherman, Warden of SATF;

16 13. Dr. Julius Metts, Primary Care Provider/Doctor for C Yard at SATF;

17 14. Jane Doe, Medical Staff/Nurse at SATF;

18 15. John Doe, Correctional Officer and Captain of C-Yard at SATF;

19 16. John Doe, Chief Medical Officer, SATF;

20 17. A. Gonzalez, Deputy Clerk, Superior Court, County of Riverside.

21 Liberally construing the amended complaint, Plaintiff asserts claims for violations of his

22 First Amendment right against retaliation and right to access the courts; excessive force in

23 violation of the Eighth Amendment’s prohibition on cruel and unusual punishment; denial of

24 Fourteenth Amendment due process; violation of the Fourth Amendment’s prohibition on

25 unlawful search and seizures; violation of the California Bane Act; intentional infliction of

26 emotional distress; and battery. Plaintiff alleges that he suffers from “mental and physical stress”

27 from the denial of his access to the courts. (Doc. 20 at 16.) Plaintiff sues for damages, declaratory

1 violations of his rights. (Id. at 18, 21, 25.)

2 IV. DISCUSSION

3 A. Statute of Limitations

4 Section 1983 does not contain a statute of limitations. Without a federal limitations period,

5 the federal courts “apply the forum state’s statute of limitations for personal injury actions, along

6 with the forum state’s law regarding tolling, including equitable tolling, except to the extent any

7 of these laws is inconsistent with federal law.” Butler v. Nat’l Cmty. Renaissance of Cal., 766

8 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th

9 Cir. 2007)).

10 California’s statute of limitations for personal injury claims is two years. Cal. Civ. P.

11 Code § 335.1. The two-year statute of limitations period is tolled for two years if the plaintiff is a

12 prisoner serving a term of less than life, which gives such prisoners effectively four years to file a

13 federal suit. See id. § 352.1(a). Here, Plaintiff was sentenced to life with the possibility of parole

14 plus 20 years, which California courts have held is less than life. See Martinez v. Gomez, 137

15 F.3d 1124, 1126 (9th Cir. 1998) (following Grasso v. McDonough Power Equip., 264 Cal. App.

16 2d 597, 601 (1968)); see also Brown v. Cnty. of Los Angeles, 830 F. App’x 231, 232 (9th Cir.

17 2020) (“[T]he only two California decisions construing § 352.1’s tolling language, ‘a term less

18 than for life,’ establish a categorical rule: a prisoner sentenced to life with the possibility of parole

19 may toll his limitations period.”).

20 The applicable statute of limitations begins to run upon accrual of the plaintiff’s claim.

21 Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). Federal law determines when a civil

22 rights claim accrues. Gibbs v. Farley, 723 F. App’x 458 (9th Cir. 2018) (citing Canatella v. Van

23 De Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007)). A claim accrues under federal law when the

24 plaintiff knows or has reason to know of the injury forming the basis of his action. This is

25 normally on the date of injury. Ward v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.

26 1994).

27 Therefore, to assess whether the claims against the Superior Court deputy clerks are

1 judgment was incorrect. In the FAC, Plaintiff asserts claims against the Superior Court

2 defendants for events related to his sentencing hearing on July 13, 2007. (Doc. 20 at 10.) If

3 Plaintiff received a copy of the abstract of judgment at that time, Plaintiff’s claim would have

4 accrued in 2007. However, this is not established in the record in this case or from available

5 online information from his underlying criminal case.

6 In the FAC, Plaintiff alleges that, on October 27, 2015, Defendant Kirchen-Rolph sent a

7 letter from the superior court to the Chief Medical Officer and a correctional case records analyst

8 at SATF. (Id. at 22.) Although Plaintiff does not describe the substance of the letter, Plaintiff

9 asserts it placed CDCR on notice that the 2017 blood draw was an illegal search and seizure. Id.

10 The California Court of Appeals for the Fourth District, in a 2019 opinion, referenced this

11 2015 letter from Superior Court to CDCR:

12 In a hearing without Avalos or a representative present, the [trial] court granted

13 the “motion/petition” and concluded no further action was necessary because the

blood test results had been sent to the court previously, citing to a November 12,

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2015 letter from the Department of Corrections. The November 2015 letter is

15 marked as confidential in the trial court docket and not included in the record.

16 In re Avalos, No. E069973, 2019 WL 151549, at *2 (Cal. Ct. App. Jan. 10, 2019). The Court of

17 Appeals determined the Department of Corrections complied with the trial court’s order in 2015,

18 and “in March 2017, Avalos was forced to submit to another blood test based on [the trial

19 court’s] order.” Id. at *6 (emphasis added). The Court of Appeals ordered the Superior Court to

20 modify the abstract of judgment by deleting the order requiring Plaintiff to submit to HIV/AIDs

21 testing. Id. at *7.

22 Defendant Kirchen-Rolph’s letter of October 27, 2015, indicates Plaintiff submitted to a

23 blood draw in 2015 pursuant to the erroneous abstract of judgment from 2007. At that point,

24 Plaintiff knew or should have known of the error on the abstract of judgment. Therefore,

25 Plaintiff’s first claim against the Superior Court defendants accrued in late-2015. Plaintiff filed

26 this action on January 21, 2021. (See Doc. 1.) With the two-year statutory tolling of the two-year

27 personal injury statute of limitations under California law, Plaintiff filed his first claim after the

1 benefit of equitable tolling, Plaintiff’s claims associated with his sentencing and alleged altered

2 abstract of judgment in Superior Court were time-barred no later than late-2019.

3 “Equitable tolling under California law “‘operates independently of the literal wording of

4 the Code of Civil Procedure’ to suspend or extend a statute of limitations as necessary to ensure

5 fundamental practicality and fairness.”” Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004)

6 (quoting Lantzy v. Centex Homes, 31 Cal.4th 363, 370 (2003)). “Application of California’s

7 equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar

8 of his claim against the effect upon the important public interest or policy expressed by the ...

9 limitations statute.” Id. (quoting Lantzy, 31 Cal.4th at 371). For purposes of determining

10 applicability of equitable tolling, lower courts are directed to consider the extent to which

11 defendant had notice of the instant claims in an earlier action, prejudice to the defendant, and the

12 plaintiff’s good faith in filing the second claim. See Azer v. Connell, 306 F.3d 930, 936 (9th Cir.

13 2002). See also Mimms v. Lewis, 698 F. App’x. 522, 522 (9th Cir. 2017) (finding prisoner not

14 entitled to equitable tolling because he “failed to demonstrate good faith and reasonable conduct”)

15 (unpublished).

16 In conducting this balancing here, the Court is mindful of the public policy interest in

17 ensuring prompt resolution of legal claims and ensuring fairness to defendants such that they may

18 defend the case while witness memories and evidence have not materially deteriorated. The Court

19 balances these equities against any injustice Plaintiff will suffer were his claims rejected on

20 grounds of untimeliness. Here, the Court does not discern from the allegations in Plaintiff’s FAC

21 that he suffered any disability preventing him from timely litigating his claims or that enforcing

22 California’s statutory tolling regimes would result in a fundamental unfairness. As set forth above,

23 Plaintiff was on notice of the bases of his current claims no later than late-2015 when he first was

24 subjected to an improper blood draw. At that time, Plaintiff had ready access to the courts to

25 timely litigate those claims – as demonstrated by other litigation Plaintiff was involved in at the

26 same time.4 Given Plaintiff’s delay in filing any action for more than one year after having notice

27 of the claim, the Court finds equitable tolling inapplicable.

1 B. Supervisory Liability

2 Plaintiff asserts that all defendants are vicariously liable under the doctrine of respondeat

3 superior. (Doc. 20 at 15, 23.) However, liability may not be imposed on supervisory personnel for

4 the actions or omissions of their subordinates under the theory of respondeat superior liability.

5 Iqbal, 556 U.S. at 676–77; Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074–75 (9th

6 Cir. 2013). “A supervisor is only liable for constitutional violations of his subordinates if the

7 supervisor participated in or directed the violations, or knew of the violations and failed to act to

8 prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Supervisory liability may be

9 based on inaction in the training and supervision of subordinates. Starr v. Baca, 652 F.3d 1202,

10 1205–06 (9th Cir. 2011). “The requisite causal connection may be established when an official

11 sets in motion a ‘series of acts by others which the actor knows or reasonably should know would

12 cause others to inflict’ constitutional harms.” Preschooler II v. Clark Cnty. Sch. Bd. of Trustees,

13 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson, 588 F.2d at 743).

14 Supervisory liability may also exist without any personal participation if the official

15 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional

16 rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego,

17 942 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other

18 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). To prove liability for an action or policy,

19 the plaintiff “must . . . demonstrate that his deprivation resulted from an official policy or custom

20 established by a . . . policymaker possessed with final authority to establish that policy.” Waggy

21 v. Spokane Cnty. Wash., 594 F.3d 707, 713 (9th Cir. 2010).

22 When a defendant holds a supervisory position, the causal link between such defendant

23 and the claimed constitutional violation must be specifically alleged. Fayle v. Stapley, 607 F.2d

24 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the involvement of

25 supervisory personnel in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d

26 266, 268 (9th Cir. 1982).

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through a petition for certiorari at the Supreme Court. See Avalos v. Sherman, No. 15-55490 (9th Cir

2015) (noting Plaintiff’s filing of motion for reconsideration on November 19, 2015 [Doc. 6] and cert

1 Plaintiff’s assertions are conclusory and insufficient to hold any defendant vicariously

2 liable for the actions of others.

3 C. Official v. Individual Capacity Claims

4 Plaintiff alleges Defendants were “acting within the course and scope of their duties.”

5 (Doc. 20 at 11, 14.) However, this language does not indicate whether Plaintiff sues Defendants

6 in their official or personal capacities. To the extent Plaintiff is seeking damages, the Eleventh

7 Amendment bars suits for money damages in federal court against state officials in their official

8 capacity. Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). However, it does

9 not bar official capacity suit for prospective relief, Wolfson v. Brammer, 616 F.3d 1045, 1065–66

10 (9th Cir. 2010), nor does it bar suit for damages against state officials in their personal capacities,

11 Hafer v. Melo, 502 U.S. 21, 30 (1991).

12 “Personal-capacity suits . . . seek to impose individual liability upon a government officer

13 for actions taken under color of state law.” Id. at 25. Where a plaintiff is seeking damages against

14 a state official and the complaint is silent as to capacity, a personal capacity suit is presumed

15 given the bar against an official capacity suit. Shoshone-Bannock Tribes v. Fish & Game

16 Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994).

17 A claim for prospective injunctive relief against a state official in his official capacity is

18 not barred by the Eleventh Amendment provided the official has authority to implement the

19 requested relief. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 92 (1989); accord Rouser v.

20 White, 707 F. Supp. 2d 1055, 1066 (E.D. Cal. 2010) (proper defendant for injunctive relief in suit

21 seeking implementation of CDCR policy is the CDCR Secretary in his official capacity).

22 Plaintiff’s official capacity claims are proper only insofar as plaintiff seeks injunctive relief.

23 Because Plaintiff has not pleaded the capacities in which he sues each defendant, the

24 Court presumes he sues each defendant in his or her individual capacity. As a result, he can only

25 pursue damages for any constitutional violations and is foreclosed from seeking injunctive relief.

26 D. Due Process

27 The Due Process Clause protects prisoners from being deprived of life, liberty, or property

1 claim of deprivation of due process, a plaintiff must allege the existence of a liberty or property

2 interest for which the protection is sought. Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of

3 Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from the Constitution

4 and from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). In determining whether the

5 Constitution itself protects a liberty interest, the court must consider whether the practice in

6 question “is within the normal limits or range of custody which the conviction has authorized the

7 State to impose.” Wolff, 418 U.S. at 557–58. An allegation of improper use of power by public

8 officers may be construed as alleging a substantive due process violation under § 1983. Cnty. of

9 Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (holding that substantive due process protects

10 against arbitrary governmental action).

11 However, the Fourteenth Amendment does not afford protection from a blood draw.

12 Schmerber v. California, 384 U.S. 757, 760–61 (1966). In Schmerber, the Supreme Court held

13 that the extraction of blood from an individual in a medically acceptable manner, despite the

14 individual’s refusal to consent, does not implicate the Due Process Clause. Id. However, “[i]t

15 would be a different case if the [officers] initiated the violence, refused to respect a reasonable

16 request to undergo a different form of testing, or responded to resistance with inappropriate

17 force.” Id. at 760 n.4.

18 Plaintiff complains the blood draw was taken over his protest and outside of a sterilized

19 medical setting. (Id. at 20.) At ASU/STRHU, inmates are taken to a “medical cage” where blood

20 withdrawals are taken according to “special procedures” whereby the handcuffs are removed, and

21 his arm is placed through the tray slot. (Id.) Even though Plaintiff’s blood was taken while he was

22 still handcuffed, this minor deviation does not support his claim that blood draws taken by

23 medical staff in that manner and in that designated area was medically improper. Moreover, even

24 if the blood draw in 2017 was taken because of an error made in Superior Court in 2007, these

25 allegations do not support a due process claim.

26 E. Excessive Force

27 Plaintiff alleges Jane Doe and John Doe subjected him to battery and the use of excessive

1 prohibits prison officials from using excessive physical force against prisoners. Farmer, 511 U.S.

2 at 832. The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and

3 unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and

4 citation omitted). “Being violently assaulted in prison is simply not part of the penalty that

5 criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 834 (internal

6 quotation marks and citation omitted). The use of force is constitutional if used to keep or restore

7 order in the prison; it is unconstitutional if used “maliciously or sadistically for the very purpose

8 of causing harm.” Whitley, 475 U.S. at 320–21.

9 A correctional officer engages in excessive force in violation of the Eighth Amendment if

10 he (1) uses excessive and unnecessary force under all the circumstances, and (2) “harms an

11 inmate for the very purpose of causing harm,” and not “as part of a good-faith effort to maintain

12 security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018); see Hudson v. McMillian, 503

13 U.S. 1, 6–7 (1992). The Supreme Court has identified five factors to consider in determining

14 whether an official’s use of force was sadistic and malicious for the purpose of causing harm: (1)

15 extent of the injury; (2) need to use the force; (3) relationship between the need to use the force

16 and the amount used; (4) the threat “reasonably perceived” by the official; and (5) any efforts

17 made to temper the severity of the force. Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at

18 321).

19 While a CO may not use excessive force, officers may use some measure of force if an

20 inmate refuses a valid order. Whitley, 475 U.S. at 320. The appropriateness of the use of force is

21 determined by the facts and circumstances of each particular case. Michenfelder v. Summer, 860

22 F.2d 328, 335 (9th Cir. 1988). De minimis use of physical force generally does not implicate the

23 Eighth Amendment; however, significant injury need not be evident in an excessive force claim.

24 Hudson, 503 U.S. at 9; Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (stating that the Eighth

25 Amendment excessive force standard examines de minimis uses of force, not de minimis injuries).

26 Because the use of force relates to the prison’s legitimate penological interest in maintaining

27 security and order, the Court must be deferential to the conduct of prison officials. See Whitley,

1 Plaintiff describes the incident as follows:

2 These actions [from 2007] led to a Battery upon Avalos on March 28, 2017,

including using unreasonable and excessive force, by deliberately and intentionally

3 putting “handcuffs” on Plaintiff to force him to submit to the HIV/AIDS testing

done on March 28, 2017. By Defendant’s John Doe & Jane Doe, in the

4 Administrative Segregation Unit/Short Term Restricted Housing Unit, to illegally

take blood without justification or excuse, intergrally [sic] participating and failing

5

to intervene in the above forcing of blood taking from Plaintiff. Defendant’s actions

thus deprived Plaintiff of force under the Fourth Amendment . . . .

6

7 (Doc. 20 at 11.) When Plaintiff asked if he could refuse the blood draw, medical staff told him

8 that he could not. (Id. at 18.) “The medical staff . . . poked Plaintiff with force . . . in his left

9 forearm behind his back, as he was still in medical restraints. . . . Which became a ‘battery’ and

10 brought to light the ‘cruel and unusual punishment Avalos was forced to have placed upon him.”

11 (Id.)

12 Plaintiff’s allegations of excessive force and emotional distress are exaggerated.

13 Essentially, the allegations indicate two members of the medical staff handcuffed him behind his

14 back, placed him in a chair, and took a blood sample from his arm. He does not allege any other

15 use of force by staff members. The use of force was de minimis, and there is no indication that the

16 use of force was sadistic, malicious, or for the purpose of causing harm. Given the de minimis use

17 of force, any pain or injury suffered by Plaintiff from the handcuffs or the needle was likewise de

18 minimis.

19 Plaintiff is unable to state a claim for excessive force during the involuntary blood draw

20 performed by medical staff at SATF.

21 F. Search and Seizure

22 The Fourth Amendment guarantees “[t]he right of the people to be secure . . . against

23 unreasonable searches and seizures.” U.S. Const. amend. IV. “This right extends to incarcerated

24 prisoners; however, the reasonableness of a particular search is determined by reference to the

25 prison context.” Michenfelder, 860 F.2d 328 at 332.

26 In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners’

27 constitutional claims. 582 U.S. 78 (1987). The Court held that “when a prison regulation

1 legitimate penological interests.” Id. at 89. The Court identified four factors relevant in analyzing

2 the reasonableness of a regulation: (1) whether there is a valid, rational connection between the

3 prison regulation and the legitimate governmental interest put forward to justify it; (2) whether

4 there are alternative means of exercising the constitutional right that remain open to the inmates;

5 (3) the nature of any impact that accommodation of the asserted constitutional right will have on

6 guards, other inmates, and on the allocation of prison resources; and (4) whether there are ready

7 alternatives to the prison regulation—the absence of such ready alternatives suggests that the

8 regulation is reasonable while their existence may be evidence of the opposite. Id. at 90–91

9 (followed by Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990)). Applying this standard to an

10 involuntary blood test under the Fourth Amendment, prison officials must (1) establish the

11 purpose of the blood test and (2) show that the results will be used to further a legitimate

12 penological interest.” Walker, 917 F.2d at 388.

13 Plaintiff indicates that, when he asked to refuse the blood draw, Jane Doe and/or John

14 Doe informed him that he could not because the draw was being taken pursuant to a court order.

15 (Doc. 20 at 18.) This indicates that medical staff had a legitimate penological interest in

16 submitting Plaintiff to the blood test (i.e., in furtherance of a facially valid court order). Plaintiff

17 alleges that SATF staff knew or should have known that the abstract of judgment was inaccurate

18 because of the letter of August 29, 2017, from CDCR staff to the Superior Court and the January

19 10, 2019, opinion by the Court of Appeal for the Fourth Circuit ordering correction of the

20 abstract. (Id. at 11.) However, the correction of the sentencing record occurred after the blood

21 draw. Therefore, the HIV/AIDS testing by medical staff at SATF was reasonable under the

22 Fourth Amendment. See Schmerber, 384 U.S. at 768 (explaining that means and procedures used

23 to extract an arrested person’s blood must be “reasonable” under the Fourth Amendment).

24 G. State Law Claims

25 In Claim V, Plaintiff alleges a violation of the Tom Bane Civil Rights Act (“Bane Act,”),

26 which prohibits the interference with a person’s constitutional rights by threat of violence,

27 intimidation, or coercion. Cal. Civ. Code § 52.1. Liberally construed, the amended complaint

1 California’s Government Claims Act5 requires that a claim against the State or its

2 employees “relating to a cause of action for death or for injury to person” be presented to the

3 Department of General Services’ Government Claims Program no more than six months after

4 the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2.

5 Presentation of a written claim, and action on or rejection of the claim, are conditions precedent

6 to suit. State v. Superior Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004). To state

7 a tort claim against a public entity or employee, a plaintiff must allege compliance with the

8 Government Claims Act. Id. Because Plaintiff has not alleged compliance with the Government

9 Claims Act, he has failed to state a claim for a Bane Act violation or torts under California law.

10 Summers v. Pfeiffer, No. 1:23-cv-00362-BAM (PC), 2023 WL 4467126, at *4–5 (E.D. Cal. July

11 11, 2023).

12 H. Declaratory Relief

13 Plaintiff has requested declaratory judgment, but such relief is unnecessary. Like other

14 forms of equitable relief, the Court has judicial discretion to grant declaratory judgment,

15 exercised in the public interest. Johnson v. Torres, No. 1:22-cv-01457-BAM (PC), 2023 WL

16 1823605, at *4 (E.D. Cal. Feb. 8, 2023) (quoting Eccles v. Peoples Bank of Lakewood Village,

17 333 U.S. 426, 431 (1948)), F.&R. adopted, 2022 WL 782342 (E.D. Cal. Mar. 15, 2022).

18 Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and

19 settling the legal relations in issue nor terminate the proceedings and afford relief from the

20 uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353,

21 1357 (9th Cir. 1985) (citations omitted). If this action reaches trial and a verdict is returned in

22 Plaintiff’s favor, then that verdict will be a finding that Plaintiffs constitutional rights were

23 violated. Johnson, 2023 WL 1823605, at *4. Because such relief is unnecessary in this case, the

24 Court should decline to exercise its discretion to enter declaratory judgment.

25 V. CONCLUSION

26 For the reasons set forth above, the amended complaint is barred by the statute of

27

5 This Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior

1 | limitations and otherwise fails to state a claim upon which relief can be granted. The Court further

2 | finds the deficiencies in the complaint cannot be cured by amendment and therefore recommends

3 | dismissal of this action without leave to amend.

4 Accordingly, it is hereby RECOMMENDED:

5 1. The Court DISMISS this action WITH PREJUDICE for failure to state a

6 claim upon which relief can be granted; and

7 2. Direct the Clerk of Court to close the case.

8 These Findings and Recommendations will be submitted to the United States District

9 | Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen

10 | (14) days after being served with these Findings and Recommendations, the parties may file

11 | written objections with the Court. The document should be captioned, “Objections to Magistrate

12 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

13 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

14 | 772 F.3d 834, 839 (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

15 } 1991)).

16 The Clerk of Court is directed to assign a District Judge to this case.

17 | IT IS SO ORDERED.

'S | Dated: _ September 12, 2023 | Wr bo

19 UNITED STATES MAGISTRATE JUDGE

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