Myers v. Clayton

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAYMOND DEAN MYERS, Case No.: 3:22-cv-00673-RBM-BLM

CDCR #AP-6843,

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ORDER:

Plaintiff,

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vs. (1) DISMISSING ALL CLAIMS

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AGAINST ALL DEFENDANTS

DR. DAVID CLAYTON, SERGEANT

15 FOR FAILURE TO STATE A

BRILLO, ASSISTANT WARDEN

CLAIM PURSUANT TO 28 U.S.C.

16 BUCKEL, CAPTAIN RODRIGUEZ,

§§ 1915(e)(2) & 1915A(b) EXCEPT

LIEUTENANT WILLIAMS, and

17 PLAINTIFF’S DUE PROCESS

CCI-FLORES,

CLAIMS AGAINST WILLIAMS,

18 Defendants. BUCKEL, RODRIGUEZ AND

19 FLORES; and

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(2) DIRECTING U.S. MARSHAL TO

21 EFFECT SERVICE OF FIRST

AMENDED COMPLAINT AND

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SUMMONS ON WILLIAMS,

23 BUCKEL, RODRIGUEZ AND

FLORES PURSUANT TO 28 U.S.C.

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§ 1915(d) & Fed. R. Civ. P. 4(c)(3)

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26 On May 6, 2022, Plaintiff Raymond Dean Myers (“Plaintiff”), a state prisoner

27 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied

28 by a Motion to proceed In Forma Pauperis (“IFP”). (Docs. 1, 2.) On June 7, 2022, the

1 Court granted Plaintiff leave to proceed IFP and sua sponte dismissed the Complaint with

2 leave to amend for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b).

3 (Doc. 4.) Plaintiff has now filed a First Amended Complaint (“FAC”). (Doc. 7.)

4 I. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

5 A. Standard of Review

6 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-Answer

7 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court

8 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,

9 malicious, fails to state a claim, or seeks damages from defendants who are immune. See

10 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.

11 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28

12 U.S.C. § 1915A(b)).

13 “The standard for determining whether a plaintiff has failed to state a claim upon

14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

17 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the

18 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule

19 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state

20 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

21 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual

22 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

23 supported by mere conclusory statements, do not suffice.” Id. at 678. “Determining

24 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

25 requires the reviewing court to draw on its judicial experience and common sense.” Id.

26 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

27 acting under color of state law, violate federal constitutional or statutory rights.”

28 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a

1 source of substantive rights, but merely provides a method for vindicating federal rights

2 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation

3 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation

4 of a right secured by the Constitution and laws of the United States, and (2) that the

5 deprivation was committed by a person acting under color of state law.” Tsao v. Desert

6 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

7 B. Allegations in the FAC

8 Plaintiff identifies himself as a 59-year-old mobility impaired inmate currently

9 incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego,

10 California. (Doc. 7 at 2, 5.) He alleges that when Defendant Dr. Clayton took over as the

11 new primary care physician at RJD he confiscated Plaintiff’s walker and mobility vest

12 along with similar durable medical equipment from other inmates. (Id. at 10.) On

13 December 18, 2019, Plaintiff informed Dr. Clayton that the new walker he had been issued

14 was of a lesser quality than the one confiscated. (Id. at 3.) Without anger or animosity in

15 his voice, Plaintiff told Dr. Clayton that because he had taken other such items from other

16 inmates with disabilities “you should watch your back in the yard, cuz, the inmates want

17 to hurt you, and you’re [sic] bedside mannerisms suck and you have no compassion.” (Id.)

18 Dr. Clayton then reported to Defendant RJD Sergeant E. Brillo that Plaintiff had threatened

19 him with great bodily harm. (Id. at 3–4.) Defendant Brillo, with a “mind-set that was of

20 conspiracy to back up a fellow-free staff worker,” wrote a report of the incident which

21 falsely reported Plaintiff as telling Dr. Clayton “you’re lucky you’re still alive, I’d watch

22 out if I were you.” (Id. at 4–5, 11.)

23 About one and one-half hours after Plaintiff made his statement to Dr. Clayton he

24 was taken from his cell in handcuffs, despite having a medical chrono requiring him to be

25 placed only in waist chains. (Id. at 4.) He experienced pain while being escorted to the

26 gymnasium where he sat on a very cold cement floor for four hours, increasing his pain.

27 (Id.) He was then taken to Administrative Segregation (“Ad-Seg”), which he refers to as

28 “the hole,” where he was forced to strip naked while in a cage in sight of a nurse in

1 retaliation for his perceived threat against Dr. Clayton. (Id.) He was then placed back into

2 handcuffs and forced to climb stairs with his hands cuffed behind his back causing further

3 pain. (Id.) He spent 67 days in Ad-Seg in a cold building without a blanket sleeping in

4 shorts and t-shirt, where he went two weeks without his special gluten-free diet and

5 contracted either the flu or Covid in addition to experiencing hypertension and angina from

6 breathing dried pigeon feces before being completely exonerated. (Id. at 4–6, 13, 17.)

7 Plaintiff alleges classification committee members Defendants RJD Assistant

8 Warden Buckel and Captain Rodriguez violated his First Amendment right to speak in his

9 own defense at a hearing regarding placement in Ad-Seg by not allowing him “to state

10 what really happened, but, being of the retaliatory state-of-mind, told plaintiff, we only

11 want to know if you are guilty or not guilty.” (Id. at 5.) He alleges Defendant RJD

12 Lieutenant Williams did not allow him to call witnesses or conduct an investigation at the

13 first hearing which caused him to serve an additional 30 days in Ad-Seg, but allowed him

14 to do so at a second hearing. (Id. at 14–16.) Williams found Plaintiff not guilty at a second

15 hearing and dismissed the charge of threatening staff for lack of evidence. (Id.) Plaintiff

16 claims Defendants conspired to violate his First, Fourth, Eighth and Fourteenth

17 Amendment rights to due process and to be free from retaliation and cruel and unusual

18 punishment. (Id. at 2, 11–21.)

19 C. Analysis

20 1. Due Process

21 “Under the Fourteenth Amendment’s Due Process Clause, a prisoner is entitled to

22 certain due process protections when he is charged with a disciplinary violation.” Serrano

23 v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff v. McDonnell, 418 U.S. 539,

24 564–71 (1974)). “Such protections include the rights to call witnesses, to present

25 documentary evidence and to have a written statement by the factfinder as to the evidence

26 relied upon and the reasons for the disciplinary action taken.” Id. at 1077–78 (citing Wolff,

27 418 U.S. at 564–71). However, as the Court informed Plaintiff in its prior Order of

28 dismissal, those protections adhere only when the disciplinary action implicates a protected

1 liberty interest either by exceeding the sentence in “an unexpected manner” or where an

2 inmate is subject to restrictions that impose “atypical and significant hardship on the inmate

3 in relation to the ordinary incidents of prison life.” (Doc. 4 at 6) (quoting Sandin v. Conner,

4 515 U.S. 472, 484 (1995)). Plaintiff was also informed that where a protected liberty

5 interest is not at stake, the minimum requirements of due process require only that “the

6 findings of the prison disciplinary board (be) supported by some evidence in the record.”

7 (Id.) (quoting Superintendent v. Hill, 472 U.S. 445, 454-55 (1985)).

8 Plaintiff now alleges in the FAC he was subjected to atypical and significant

9 hardships in relation to the ordinary incidents of prison life during his stay in Ad-Seg, both

10 mentally and physically, and had his sentence exceeded in an unexpected manner, because:

11 (1) he was placed there based on false and retaliatory charges which amounted to a denial

12 of his right to speak freely with his physician, and he was exonerated at a second hearing

13 which found no evidence to support a disciplinary infraction following a “kangaroo court”

14 first hearing where he was denied his right to call witnesses, (2) he was escorted to Ad-Seg

15 painfully with his hands cuffed behind his back in violation of a medical chrono, where he

16 encountered mobility challenges, (3) he was denied his gluten-free meal for two weeks,

17 (4) he has a record of having an immunosuppressed system and fell ill with either the flu

18 or Covid and taken by ambulance to the prison clinic as a result of having to sleep wearing

19 only boxers and a t-shirt without a blanket during a cold and wet December Ad-Seg stay

20 in filthy conditions which included breathing dried pigeon feces dust, (5) he lost personal

21 property, including law books, food and hygiene items left behind in his cell and stolen by

22 other inmates, and (6) he was subjected to humiliation, harassment, cruelty and loss of

23 dignity during two strip searches. (Doc. 7 at 6–14.) These allegations are sufficient to

24 survive the “low threshold” for proceeding past the sua sponte screening required by 28

25 U.S.C. §§ 1915(e)(2) & 1915A(b) with respect to whether a protected liberty interest arose

26 as a result of the conditions in Ad-Seg sufficient to entitle Plaintiff to the procedural

27 protections of Wolff at his disciplinary hearing. See Wilhelm, 680 F.3d at 1123; Iqbal, 556

28 U.S. at 678; see also Keenan v. Hall, 83 F.3d 1983, 1088-89 (9th Cir. 1996) (“The Sandin

1 Court seems to suggest that a major difference between the conditions for the general

2 population and the segregated population triggers a right to a hearing.”) (citing Sandin, 515

3 U.S. at 485 and Serrano, 345 F.3d at 1078 (identifying three “guideposts” for that inquiry,

4 including how the conditions differed from ordinary conditions of confinement, their

5 duration and the degree of restraint)).

6 Plaintiff has also plausibly alleged Defendant Williams denied him due process at

7 the first hearing, which took place 37 days after his initial Ad-Seg placement, when

8 Williams denied Plaintiff the opportunity to present evidence and call witnesses in his

9 defense, which resulted in an additional 30-day Ad-Seg placement under the conditions

10 described above. See Wolff, 418 U.S. at 566 (“We are also of the opinion that the inmate

11 facing disciplinary proceedings should be allowed to call witnesses and present

12 documentary evidence in his defense when permitting him to do so will not be unduly

13 hazardous to institutional safety or correctional goals.”). In addition, Plaintiff alleges

14 Defendants Buckel, Rodriguez and Flores sat on the classification committee which

15 extended his Ad-Seg stay by 30 days, but they “never allowed Plaintiff to state what really

16 happened, but, being of the retaliatory state-of-mind, told plaintiff, we only want to know

17 if you are guilty or not guilty. Plaintiff Myers stated not guilty and committee members

18 stated very sternly, ‘we all find you guilty’ and will hold you over 29 more days.” (Doc. 7

19 at 5.) Plaintiff has plausibly alleged a due process violation against Buckel, Rodriguez and

20 Flores. See Edwards v. Balisok, 520 U.S. 641, 647 (1997) (“The due process requirements

21 for a prison disciplinary hearing . . . are not so lax as to let stand the decision of a biased

22 hearing officer who dishonestly suppresses evidence of innocence.”).

23 Accordingly, the allegations in the FAC are sufficient to survive the “low threshold”

24 for proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) &

25 1915A(b) with respect to Defendants Williams, Buckel, Rodriguez and Flores. See

26 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. Plaintiff is entitled to have the U.S.

27 Marshal effect service of the summons and his FAC on his behalf against these Defendants.

28 See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

1 perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that

2 service be made by a United States marshal or deputy marshal . . . if the plaintiff is

3 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

4 However, Plaintiff has not plausibly alleged Defendants Dr. Clayton and Sergeant

5 Brillo, the only other two Defendants named in the FAC, violated his due process rights.

6 He merely alleges these Defendants changed the wording of the statement he made to Dr.

7 Clayton to falsely support a disciplinary infraction, but there are no allegations they were

8 involved in either of the disciplinary hearings. The allegation he was falsely charged with

9 a rule violation fails to state a due process claim because “a prisoner does not have a

10 constitutional right to be free from wrongfully issued disciplinary reports.” Buckley v.

11 Gomez, 36 F.Supp.2d 1216, 1222 (S.D. Cal. 1997), aff’d, 168 F.3d 498 (9th Cir. 1999).

12 This is because the procedural protections available in disciplinary proceedings adequately

13 protect a prisoner’s federal constitutional right to due process. See, e.g., Gadsden v. Gehris,

14 No. 20cv0470-WQH (DEB), 2020 WL 5748094, at *8 (S.D. Cal. Sep. 25, 2020) (“The

15 allegations of the filing of false disciplinary charges by itself does not state a claim under

16 42 U.S.C. § 1983 because federal due process protections are contained in the ensuing

17 disciplinary proceedings themselves.”). Plaintiff was informed of this defect of pleading

18 in the Court’s prior dismissal order and has not cured it with respect to Defendants Dr.

19 Clayton and Sergeant Brillo. (Doc. 4 at 6–7.) Plaintiff’s due process claims against

20 Defendants Dr. Clayton and Sergeant Brillo are dismissed for failure to state a claim upon

21 without further leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1).

22 Wilhelm, 680 F.3d at 1121; Watison, 668 F.3d at 1112.

23 2. Cruel and Unusual Punishment

24 Plaintiff claims he was subjected to cruel and unusual punishment as a result of his

25 stay in Ad-Seg. “The circumstances, nature, and duration” of the conditions in Ad-Seg

26 must rise to the level of the denial of “the minimal civilized measure of life’s necessities”

27 as opposed to “routine discomfort inherent in the prison setting” in order to violate the

28 Eighth Amendment’s prohibition on cruel and unusual punishment as applicable to the

1 states through the Fourteenth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

2 2000); see also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (“[W]hile

3 conditions of confinement may be, and often are, restrictive and harsh,” only conditions

4 which are “devoid of legitimate penological purpose . . . or contrary to evolving standards

5 of decency that mark the progress of a maturing society” violate the Eighth Amendment)

6 (citing Hudson v. Palmer, 468 U.S. 517, 548 (1984) and Trop v. Dulles, 356 U.S. 86, 101

7 (1985)); see Farmer v. Brennan, 511 U.S. 825, 834 (1994) (an Eighth Amendment

8 violation occurs where a prisoner is denied “the minimal civilized measure of life’s

9 necessities.”); Hudson, 503 U.S. at 9 (an Eighth Amendment violation requires an

10 objectively grave deprivation of humane conditions of confinement); Whitley v. Albers,

11 475 U.S. 312, 319 (1986) (“After incarceration, only the unnecessary and wanton infliction

12 of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth

13 Amendment.”).

14 Even assuming Plaintiff has plausibly alleged a grave deprivation of humane

15 conditions of confinement in Ad-Seg which created a serious risk to his health or safety,

16 he has once again failed to identify any Defendant responsible for those conditions. The

17 Court instructed Plaintiff in its prior dismissal Order that he must allege facts showing that

18 a Defendant knew the conditions of confinement in Ad-Seg presented a substantial risk to

19 his health and safety and deliberately disregarded that risk. (Doc. 4 at 9 (citing Farmer,

20 511 U.S. at 837 (“[A] prison official cannot be found liable under the Eighth Amendment

21 for denying an inmate humane conditions of confinement unless the official knows of and

22 disregards an excessive risk to inmate health or safety; the official must both be aware of

23 facts from which the inference could be drawn that a substantial risk of serious harm exists,

24 and he must also draw the inference.”)). There are no allegations in the FAC that any

25 Defendant was aware the conditions in Ad-Seg presented a serious danger to Plaintiff’s

26 health or safety and deliberately disregarded that risk. Accordingly, Plaintiff’s Eighth

27 Amendment claim is dismissed for failure to state a claim without further leave to amend

28 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1). Wilhelm, 680 F.3d at 1121;

1 Watison, 668 F.3d at 1112.

2 3. Remaining Claims

3 Plaintiff alleges in an entirely conclusory manner that his First Amendment rights

4 were violated by Defendants when they conspired to act with a retaliatory motive. Plaintiff

5 was informed in the Court’s prior dismissal order that his amended complaint must

6 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

7 on its face.’” (Doc. 4 at 3) (quoting Iqbal, 556 U.S. at 678). He was informed that

8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

9 statements, do not suffice” to state a claim. (Id.) (quoting Iqbal, 556 U.S. at 679).

10 Plaintiff’s allegations of retaliation and conspiracy are entirely conclusory without factual

11 support of any kind and fail to state a § 1983 claim. Accordingly, Plaintiff’s conspiracy

12 and retaliation claims are dismissed for failure to state a claim without further leave to

13 amend pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1). Wilhelm, 680 F.3d at

14 1121; Watison, 668 F.3d at 1112; Iqbal, 556 U.S. at 678.

15 IV. Conclusion and Orders

16 Accordingly, good cause appearing, the Court:

17 1. DISMISSES all claims against all Defendants in Plaintiff’s First Amended

18 Complaint with the exception of Plaintiff’s Fourteenth Amendment due process claim

19 against Defendants Williams, Buckel, Rodriguez and Flores.

20 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended

21 Complaint (Doc. 7) for Defendants Williams, Buckel, Rodriguez and Flores and forward

22 it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. The

23 Clerk will provide Plaintiff with certified copies of his First Amended Complaint and the

24 summons so that he may serve Defendants. Upon receipt of this “In Forma Pauperis

25 Package,” Plaintiff must complete the USM Form 285 as completely and accurately as

26 possible, include an address where Defendants may be found and/or subject to service

27 pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the United States Marshal

28 according to the instructions the Clerk provides in the letter accompanying the In Forma

| || Pauperis Package.

2 3. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint

3 summons upon Defendants Williams, Buckel, Rodriguez and Flores as directed by

4 || Plaintiff on the USM Form 285 provided to him. All costs of that service will be advanced

5 || by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

6 4. ORDERS Defendants, once served, to reply to Plaintiff's First Amended

7 ||Complaint and any subsequent pleading Plaintiff files in this matter in which Defendants

8 || are named as a party within the time provided by the applicable provisions of Federal Rules

9 || of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may

10 || occasionally be permitted to “waive the right to reply to any action brought by a prisoner

11 confined in any jail, prison, or other correctional facility under section 1983,” once the

12 || Court has conducted its sua sponte screening Defendants are required to respond).

13 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

14 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’

15 ||}counsel, a copy of every further pleading, motion, or other document submitted for the

16 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

17 || original document he seeks to file with the Clerk, a certificate stating the manner in which

18 |/a true and correct copy of that document has been served on Defendants or their counsel,

19 || and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court

20 || which has not been properly filed with the Clerk or which fails to include a Certificate of

21 Service upon a Defendant, or their counsel, may be disregarded.

22 IT IS SO ORDERED.

23 ||Dated: September 21, 2022 Barnude, MpitteagyD

24 Hon. Ruth Bermudez Montenegro

5 United States District Judge

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