(PC) Calderon v. Covello

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JUAN CARLOS CALDERON, No. 2:23-cv-2049 KJN P

12 Plaintiff,

13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 P. COVELLO, et al.,

15 Defendants.

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17 Introduction

18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

19 to 42 U.S.C. § 1983. On October 11, 2023, the undersigned found that plaintiff’s complaint

20 stated a potentially colorable Eighth Amendment claim against defendant Campos for allegedly

21 throwing a T-6 oleoresin capsicum grenade/bomb under plaintiff’s cell door without cause on

22 June 7, 2023.1 (ECF No. 7.) The undersigned found that the remaining claims in plaintiff’s

23 complaint were not potentially colorable. (Id.) The undersigned granted plaintiff thirty days to

24 either file an amended complaint or inform the court that he intended to proceed on the

25 potentially colorable claim against defendant Campos. (Id.)

26 ////

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1 Plaintiff attached to the original complaint declarations by three inmates who allegedly

28 witnessed the June 7, 2023 incident. (ECF No. 1 at 10-13.)

1 On November 3, 2023, plaintiff filed an amended complaint. (ECF No. 10.) For the

2 reasons stated herein, the undersigned recommends dismissal of all claims in the amended

3 complaint, except for the potentially colorable Eighth Amendment excessive force and inadequate

4 medical care claims against defendant Campos. The undersigned separately orders service of

5 defendant Campos as to these claims.

6 The undersigned also herein addresses plaintiff’s motion for appointment of counsel (ECF

7 No. 11), plaintiff’s motions for injunctive relief (ECF Nos. 12, 14), and plaintiff’s motion for

8 personal pleading, etc. (ECF No. 13.)

9 Amended Complaint

10 Screening Standard

11 The court is required to screen complaints brought by prisoners seeking relief against a

12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

13 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

14 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

15 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

16 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

17 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

18 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

19 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

20 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

21 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

22 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

23 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

24 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

25 1227.

26 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

27 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

1 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

2 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

3 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

4 sufficient “to raise a right to relief above the speculative level.” Id. However, “[s]pecific facts

5 are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . .

6 . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

7 (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted).

8 In reviewing a complaint under this standard, the court must accept as true the allegations of the

9 complaint in question, id., and construe the pleading in the light most favorable to the plaintiff.

10 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468

11 U.S. 183 (1984).

12 Discussion

13 Named as defendants in the amended complaint are Warden Covello, Correctional Officer

14 Campos and Does 1-50. (ECF No. 10 at 3.)

15 Plaintiff alleges that on December 16, 2021, defendants Does 1-10 opened plaintiff’s cell

16 door and allowed an inmate to enter plaintiff’s cell. (Id. at 4.) The inmate assaulted plaintiff

17 because, according to the other inmate, plaintiff was a “piece of human waste.” (Id.)

18 Prison officials have a duty to take reasonable measures to guarantee the safety of inmates,

19 which has been interpreted to include a duty to protect prisoners. Labatad v. Corrections Corp. of

20 America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 511 U.S. 825, 832-33

21 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To establish a violation of this

22 duty, a prisoner must “show that the officials acted with deliberate indifference to threat of serious

23 harm or injury to an inmate.” Labatad, 714 F.3d at 1160 (citing Gibson v. County of Washoe, 290

24 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Angeles,

25 833 F.3d 1060, 1076 (9th Cir. 2016)). A failure to protect claim under the Eighth Amendment

26 requires a showing that “the official [knew] of and disregard[ed] an excessive risk to inmate ...

27 safety.” Farmer, 511 U.S. at 837.

28 ////

1 Plaintiff does not describe how each defendant Doe 1-10 participated in opening his cell

2 door to allow the inmate into plaintiff’s cell. Plaintiff also fails to allege how each defendant Doe

3 1-10 knew that the inmate posed an excessive risk to plaintiff’s safety. Based on these vague and

4 conclusory allegations, the undersigned finds that this claim against defendants Does 1-10 does not

5 state a potentially colorable claim for relief. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.

6 1982) (vague and conclusory allegations concerning the involvement of official personnel in civil

7 rights violations are not sufficient). Accordingly, this claim should be dismissed.

8 Plaintiff alleges that after the December 16, 2021 assault, he was placed in segregation

9 and denied medical care for his injuries. (ECF No. 10 at 5.) Plaintiff does not allege that any

10 defendant, including Doe defendants, denied him medical care.

11 The Civil Rights Act under which this action was filed provides as follows:

12 Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the deprivation

13 of any rights, privileges, or immunities secured by the Constitution .

. . shall be liable to the party injured in an action at law, suit in equity,

14 or other proper proceeding for redress.

15 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

16 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

17 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

18 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

19 affirmative link between the incidents of police misconduct and the adoption of any plan or policy

20 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

21 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative

22 act, participates in another’s affirmative acts or omits to perform an act which he is legally

23 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

24 F.2d 740, 743 (9th Cir. 1978).

25 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

26 their employees under a theory of respondeat superior and, therefore, when a named defendant

27 holds a supervisorial position, the causal link between him and the claimed constitutional

28 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

1 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

2 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

3 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

4 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

5 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

6 participation is insufficient).

7 Plaintiff’s claim alleging denial of medical care following the December 16, 2021 assault

8 should be dismissed because no defendants are linked to this claim.

9 Plaintiff alleges that after the December 16, 2021 assault, defendants Does 1-10

10 confiscated plaintiff’s personal property. (ECF No. 10 at 5.) Plaintiff identifies the property

11 confiscated as his legal paperwork, litigation books, typewriter “and everything.” (Id.) Plaintiff

12 alleges that defendants confiscated his property to obstruct the course of justice and to interfere

13 with civil rights litigation. (Id.) The undersigned construes these allegations to allege a claim for

14 denial of access to the courts.

15 Inmates have a fundamental right of access to the courts. Lewis v. Casey, 518 U.S. 343,

16 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (“We have recognized that

17 prisoners’ First and Fourteenth Amendment rights to access the courts without undue interference

18 extend beyond the pleading stages”), overruled on other grounds as stated by Richey v. Dahne,

19 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The right is limited to direct criminal appeals, habeas

20 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise

21 from the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking

22 access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking

23 claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). A plaintiff must show that he

24 suffered an “actual injury” by being shut out of court. Lewis, 518 U.S. at 350-51. An “actual

25 injury” is one that hinders the plaintiff’s ability to pursue a legal claim. Id. at 351.

26 Further, a plaintiff must identify the underlying lawsuit that forms the basis of the claim

27 with sufficient detail so that the court can determine whether it was a non-frivolous, arguable

28 claim. Christopher, 536 U.S. at 415 (“It follows that the underlying cause of action, whether

1 anticipated or lost, is an element that must be described in the complaint, just as much as

2 allegations must describe the official acts frustrating the litigation.”)

3 Plaintiff’s allegations that defendants Does 1-10 confiscated his legal property does not

4 state a potentially colorable access to the courts claim because plaintiff does not allege an actual

5 injury. Plaintiff does not allege prejudice with respect to actual contemplated or existing

6 litigation. Accordingly, this claim should be dismissed.

7 Plaintiff alleges that on June 7, 2023, defendants Campos, Covello and defendants Does

8 1-50 conspired to violate his constitutional rights. ECF No. 10 at 5.) Plaintiff alleges that on

9 June 7, 2023, defendant Campos exploded a grenade/bomb under plaintiff’s cell door after faking

10 an altercation between inmates. (Id. at 5-6.) Plaintiff suffered harm as a result of being exposed

11 to the grenade/bomb. (Id. at 5.) Plaintiff alleges that defendant Campos opened plaintiff’s cell

12 door twenty minutes after the grenade/bomb exploded and failed to offer plaintiff medical care

13 for the injuries caused by exposure to the grenade/bomb. (Id.) These allegations state potentially

14 colorable Eighth Amendment claims against defendant Campos for excessive force and

15 inadequate medical care. The undersigned separately orders service of these claims.

16 For the following reasons, the undersigned finds that plaintiff does not state a potentially

17 colorable conspiracy claim against defendants Campos, Covello and Does 1-50 based on the June

18 7, 2023 incident. In order to state a conspiracy claim, plaintiff must “allege [some] facts to

19 support the existence of a conspiracy among the defendants.” Buckey v. Cnty. of Los Angeles,

20 968 F.2d 791, 794 (9th Cir. 1992). Additionally, a conspiracy claim brought under § 1983

21 requires proof of “‘an agreement or meeting of the minds to violate constitutional rights.’”

22 Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel Workers of Am. v.

23 Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (citation omitted)). Plaintiff pleads

24 no facts demonstrating that defendants Campos, Covello and Does 1-50 had an agreement or

25 meeting of the minds to violate his constitutional rights. Accordingly, plaintiff’s conspiracy

26 claim should be dismissed.

27 Plaintiff also alleges that defendants Does 1-50 participated in the June 7, 2023 incident.

28 (ECF No. 10 at 6.) Plaintiff does not describe how each defendant Doe 1-50 participated in the

1 June 7, 2023 incident. These vague and conclusory allegations do not state a potentially colorable

2 claim for relief. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (vague and

3 conclusory allegations concerning the involvement of official personnel in civil rights violations

4 are not sufficient).

5 Plaintiff raises the following claims to which no defendants are linked. Plaintiff alleges

6 that he was subjected to high risk surgeries for the implantation of a chip to monitor his brain

7 activities. (ECF No. 10 at 6.) Plaintiff alleges that in August 2022, he was wrongly denied parole

8 based on an abuse of discretionary power, etc.2 (Id.) Plaintiff alleges that he was hospitalized for

9 rare illnesses, rashes and viruses but failed to receive medical care. (Id. at 7.) The undersigned

10 recommends dismissal of these claims because no defendants are linked to these claims.

11 Plaintiff alleges that defendants Covello, Campos and Does 1-50 abused their power by

12 disclosing plaintiff’s prison files in order to incite inmates and people in general to abuse and

13 punish plaintiff. (Id.) Plaintiff alleges no other facts in support of this claim. Standing alone,

14 these vague and conclusory allegations do not state a potentially colorable claim for violation of

15 plaintiff’s constitutional rights. Accordingly, this claim should be dismissed. Ivey v. Board of

16 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (vague and conclusory allegations concerning the

17 involvement of official personnel in civil rights violations are not sufficient).

18 Plaintiff has been granted leave to amend once already. Because it is clear that plaintiff

19 cannot cure the pleadings defects discussed above, the undersigned recommends dismissal of all

20 claims raised in the amended complaint but for the potentially colorable Eighth Amendment

21 excessive force and inadequate medical care claims against defendant Campos. Lucas v. Dep’t of

22 Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure

23 the defect... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity

24 to amend prior to dismissal of the action.”).

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2 For purposes of these findings and recommendations, the undersigned finds that this claim is

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properly raised in this civil rights action. Cf. Richardson v. Bd. of Prison Hearings, 785 F. App'x

27 433, 434 (9th Cir. 2019) (holding that petition asserting Eighth and Fourteenth Amendment

violations arising from denial of request for early parole would not necessarily result in

28 immediate release from prison but rather entitlement to a new parole hearing).

1 Motion for Appointment of Counsel (ECF No. 11)

2 Plaintiff requests appointment of counsel. District courts lack authority to require counsel

3 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490

4 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to

5 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

6 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

7 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

8 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

9 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

10 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

11 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

12 common to most prisoners, such as lack of legal education and limited law library access, do not

13 establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

14 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his

15 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this

16 time.

17 Plaintiff’s Motions for Injunctive Relief (ECF Nos. 12, 14)

18 On November 3, 2023, plaintiff filed two motions for injunctive relief. In the first motion

19 for injunctive relief, plaintiff requests that he be released or transferred to Mexico. (ECF No. 12.)

20 The grounds of this request appear to be that plaintiff is being subjected to deadly viruses, rashes,

21 infections and other ailments for which he received inadequate medical care.3 (Id. at 1.)

22 In the second motion, plaintiff raises several claims raised in the amended complaint

23 found not potentially colorable above. For example, plaintiff alleges that the government

24 monitors his brain and disclosed his personal files. (ECF No. 14 at 1.) Plaintiff also raises new

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3 Plaintiff’s claims seeking release from prison based on exposure to deadly viruses, etc., are

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properly brought in a civil rights action. See Bradway v. Rao, 2021 WL 5525857, at *1 (E.D.

27 Cal. Nov. 24. 2021), adopted 2022 WL 1631227 (E.D. Cal. May 23, 2022) (finding claims for

release due to COVID-19, prisoner’s inadequate mental health treatment, and the prison’s refusal

28 to order single-cell housing not cognizable in habeas).

1 claims. Plaintiff alleges that he suffers from several medical problems for which he has not

2 received treatment. (Id. at 3.) Plaintiff also appears to challenge the validity of his conviction.

3 (Id. at 2.)

4 As relief, the second motion for injunctive relief requests 1) an investigation and order

5 stopping the illegal/criminal wrongs complained of; 2) referral of this action to appropriate

6 governmental authorities; 3) a parole date or transfer to Mexico; 4) classification as a youthful

7 and elderly offender; 5) adequate medical care; and 6) an end to the ongoing corruption, abuse of

8 authority, etc. (Id. at 5.)

9 To the extent plaintiff is attempting to challenge the validity of his conviction in the

10 second motion for injunctive relief, the exclusive method for asserting that challenge is by way of

11 filing a petition for writ of habeas corpus, not a civil rights action. Wilkinson v. Dotson, 544 U.S.

12 74, 78 (2005).

13 Turning to the remaining requests for injunctive relief, to obtain preliminary injunctive

14 relief, plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer

15 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

16 and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council,

17 Inc., 555 U.S. 7, 20 (2008). Plaintiff cannot show a likelihood of success on the merits because

18 the injunctive relief he seeks in the two pending motions is unrelated to the claims on which this

19 action will proceed, i.e., plaintiff’s claims alleging that on June 7, 2023, defendant Campos

20 violated the Eighth Amendment by using excessive force and failing to provide adequate medical

21 care.

22 Accordingly, for the reasons discussed above, plaintiff’s motions for injunctive relief

23 should be denied.

24 Plaintiff’s Motion for “Personal Legal Pleading…” (ECF No. 13)

25 On November 3, 2023, plaintiff filed a motion titled “Motion/Petition/Personal Legal

26 Pleading for Justice, Relief and Remedy at Law Against Abuse of Process/Power/Authority,

27 Racial Bias/Prejudice and Irrational/Unreasonable Madness of all State/Federal Government

28 Authorities/People/Officials.” (ECF No. 13.) Although labeled as a motion, this pleading does

1 | not appear to seek any particular relief. Instead, this pleading appears to be briefing in support of

2 || the amended complaint and/or the motions for injunctive relief discussed above. The undersigned

3 || reviewed this pleading in consideration of plaintiff's amended complaint and motions for

4 || injunctive relief. No further orders will issue regarding this pleading.

5 Accordingly, IT IS HEREBY ORDERED that:

6 1. Plaintiff's motion for appointment of counsel (ECF No. 11) is denied;

7 2. Plaintiff's motion for personal legal pleading, etc. (ECF No. 13) is construed as

8 briefing in support of the amended complaint and motions for injunctive relief;

9 3. The Clerk of the Court shall appoint a district judge to this action; and

10 IT IS HEREBY RECOMMENDED that:

11 1. All claims raised in the amended complaint but for the Eighth Amendment excessive

12 force and inadequate medical care claims against defendant Campos be dismissed; and

13 2. Plaintiff's motions for injunctive relief (ECF Nos. 12, 14) be denied.

14 These findings and recommendations are submitted to the United States District Judge

15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

16 || after being served with these findings and recommendations, plaintiff may file written objections

17 || with the court and serve a copy on all parties. Such a document should be captioned

18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

19 | failure to file objections within the specified time may waive the right to appeal the District

20 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

21 | Dated: November 8, 2023

” Aectl Aharon

23 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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