Martinez v. Rocha

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ARMANDO MARTINEZ, Case No.: 3:24-cv-1750-AJB-BLM

CDCR # BI-3959,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS [ECF No. 3];

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15 (2) DISMISSING COMPLAINT FOR

JOSHUA ROCHA, E. DE LA PARRA, SEEKING MONEY DAMAGES

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A. TRUJILLO, FROM IMMUNE DEFENDANTS

17 Defendants. AND FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C.

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§§ 1915(e)(2)(B) AND 1915A(b)

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20 Plaintiff Armando Martinez (“Plaintiff” or “Martinez”), currently a state inmate

21 proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along

22 with a motion to proceed in forma pauperis (“IFP”). See ECF Nos. 1, 3. In his Complaint,

23 Martinez alleges his Eighth Amendment rights were violated when Defendants used

24 excessive force against him. See generally, ECF No. 1. As discussed below, the Court

25 grants Plaintiff’s IFP motion and dismisses the Complaint without prejudice.

26 I. MOTION TO PROCEED IFP

27 All parties instituting any civil action, suit or proceeding in a district court of the

28 United States, except an application for writ of habeas corpus, must pay a filing fee of

1 $405. See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the

2 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.

3 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

4 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit

5 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

6 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund

7 account statement (or institutional equivalent) for . . . the 6-month period immediately

8 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust

9 account statement, the Court assesses an initial payment of 20% of (a) the average monthly

10 deposits in the account for the past six months, or (b) the average monthly balance in the

11 account for the past six months, whichever is greater, unless the prisoner has no assets. See

12 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners who proceed IFP must repay the entire fee in

13 installments regardless of whether their action is ultimately dismissed. 28 U.S.C.

14 § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).

15 In support of his IFP Motion, Martinez has provided a copy of his prison certificate

16 and trust account statement. ECF No. 2. During the six months prior to filing suit, Martinez

17 had an average monthly balance of $0.29 and average monthly deposits of $0.00; and at

18 the time he filed suit he had an available account balance of $0.29. Id. at 5. Accordingly,

19 the Court GRANTS Plaintiff’s IFP motion. Because Plaintiff had no funds on account at

20 the time of filing, the Court assesses no initial payment. Instead, Martinez must pay the full

21 $350 filing fee in installments as set forth in 28 U.S.C. § 1915(b)(2).

22 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

23 A. Legal Standards

24 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a

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1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule,

§ 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted

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1 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,

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

3 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,

4 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has

5 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the

6 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”

7 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a

8 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible

9 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

10 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements

11 of a cause of action, supported by mere conclusory statements, do not suffice” to state a

12 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

13 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.

14 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation

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

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

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

18 B. Plaintiff’s Allegations

19 Martinez alleges that on October 18, 2023, he was leaving his housing unit at

20 Calipatria State Prison to eat breakfast. ECF No. 1 at 3. As he was entering the dining hall,

21 Martinez saw another inmate, Ochoa. Plaintiff went to greet Ochoa, who was a former

22 cellmate of Martinez’s, with a “hug and a handshake.” Id. But to Martinez’s “surprise,”

23 Ochoa “physically assaulted Martinez by hitting [him] in the jaw area.” Id. Martinez

24 attempted to defend himself but, at some point, fell to the ground. Martinez then stood back

25 up and continued defending himself. Id.

26 Defendants De La Parra and Trujillo (both correctional officers) were armed with

27 “batons and pepper spray” but when they saw the altercation between Ochoa and Martinez,

28 they “did nothing” to intervene or stop “Plaintiff from being attacked.” Id. at 3–4. Instead,

1 De La Parra radioed “Central Control” to notify officers there was a fight inside the facility.

2 De La Parra and Trujillo later “admitted” in a report that they “kept a safe distance from

3 the incident.” Id. at 4.

4 Shortly after De La Parra notified Central Control of the fight, Defendant Rocha

5 fired a projectile at Martinez. Id. at 4–5. Instead of firing “in front of Plaintiff, to[ward] the

6 ground to ricochet to its target, pursuant to California Department of Corrections and

7 Rehabilitation (“CDCR”) shooting policy,” Rocha fired a projectile which hit Plaintiff in

8 the face. Id. at 4. Martinez sustained injuries to his eye which required treatment at an

9 outside medical facility. Id. at 4–5. Martinez alleges that CDCR policy “prohibits

10 correctional officers from using a firearm to shoot incarcerated people in the head area

11 when an incident occurs and force is permitted [] to quell any physical altercation between

12 [inmates].” Id. at 5.

13 After the incident, Plaintiff was issued a rule violation report (“RVR”) related to the

14 fight, even though he was “only defending himself.” Id. A disciplinary hearing was held

15 and Plaintiff was found guilty of the RVR and, as a result, lost good-time credits and

16 “various privileges.” Id.

17 C. Discussion

18 Martinez claims Defendants Rocha violated his Eighth Amendment rights be using

19 excessive force against him. Id. at 2. He further alleges Defendants De La Parra and Trujillo

20 violated his Eighth Amendment rights by failing to intervene to protect his safety. Plaintiff

21 seeks money damages and an injunction preventing “Rocha from being assigned to [a]

22 position to use a firearm with the CDCR.” Id. at 7.

23 1. Official Capacity Claims

24 Martinez sues Defendants in their official capacities only. See ECF No. 1 at 2. An

25 “official-capacity suit is, in all respects other than name, to be treated as a suit against the

26 entity” and as such are treated as claims against the State. Kentucky v. Graham, 473 U.S.

27 159, 166 (1985); see also Leer v. Murphy, 844 F.2d 628, 631–32 (9th Cir. 1988) (finding

28 claims against prison correctional officer, warden, and other officials in official capacity

1 to be claims against State). As such, the Eleventh Amendment bars a prisoner’s § 1983

2 claims for money damages against state actors sued in their official capacities. Michigan

3 State Police Dep’t v. Will, 491 U.S. 58, 66 (1989) (“We hold that neither a State nor its

4 officials acting in their official capacities are ‘persons’ under § 1983.”); see also Dittman

5 v. California, 191 F.3d 1020, 1025–26 (9th Cir. 1999) (“The State of California has not

6 waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in

7 federal court.”); but see Hafer v. Melo, 502 U.S. 21, 31 (1991) (“[S]tate officials, sued in

8 their individual capacities, are ‘persons’ within the meaning of § 1983.”) (emphasis

9 added)). Thus, to the extent Martinez is suing Defendants in their official capacities and

10 seeking monetary damages, the claims are barred by the Eleventh Amendment.

11 And to the extent Plaintiff seeks an injunction “preventing Rocha from being

12 assigned to [a] position to use a firearm with the CDCR” (ECF No. 1 at 7), he also fails to

13 state a claim. State officials sued in their official capacity for prospective injunctive relief

14 are persons for purposes of § 1983. See Will, 491 U.S. at 71 n.10; Cornel v. Hawaii, 37

15 F.4th 527, 531 (9th Cir. 2022) (stating that “state officials are ‘persons’ under § 1983 when

16 sued for prospective injunctive relief”). But to seek injunctive relief against an official-

17 capacity defendant, a plaintiff must “identify the law or policy challenged as a

18 constitutional violation and name the official within the entity who can appropriately

19 respond to injunctive relief.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114,

20 1127 (9th Cir. 2013) (citing Los Angeles County v. Humphries, 562 U.S. 29, 35–36 (2010)).

21 Martinez has failed to do so here. Furthermore, Plaintiff has failed to name the official(s)

22 alleged to have a connection with the enforcement of an alleged law, policy, or custom and

23 who can respond to his request for injunctive relief. Thus, Martinez’s claims seeking

24 injunctive relief must also be dismissed.

25 In sum, Plaintiff has failed to state a cognizable official capacity-claim against any

26 named Defendant. Therefore, the Complaint is dismissed without prejudice for seeking

27 damages from defendants who are immune and for failure to state a claim. See 28 U.S.C.

28 §§ 1915(e)(2)(B)(ii)–(iii) & 1915A(b)(1)–(2).

1 2. Eighth Amendment

2 Even if Plaintiff had named Defendants in their individual capacities, as currently

3 pleaded, his Complaint would fail to state an Eighth Amendment claim against Defendants.

4 a. Rocha

5 First, Martinez has not alleged sufficient facts to state a plausible Eighth Amendment

6 claim against Rocha. “[T]he unnecessary and wanton infliction of pain . . . constitutes cruel

7 and unusual punishment forbidden by the Eighth Amendment.” Hudson v. McMillian, 503

8 U.S. 1, 5, (1992) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986). The “core judicial

9 inquiry” in considering an Eighth Amendment excessive force claim is “whether force was

10 applied in a good-faith effort to maintain or restore discipline, or maliciously and

11 sadistically to cause harm.” Id. at 7; Wilkins v. Gaddy, 559 U.S. 34, 40, (2010). To that

12 end, federal courts look to factors such as (1) the extent of the injury, (2) the need to use

13 the force, (3) relationship between the need and the amount of force used, (4) the threat

14 “reasonably perceived” by the officials, and (5) “any efforts made to temper the severity”

15 of the force. Hudson, 503 U.S. at 7 (citations omitted).

16 Where, as here, prison officials “act in response to a prison disturbance, their actions

17 are necessarily taken ‘in haste, under pressure,’ and balanced against ‘competing

18 institutional concerns for safety of prison staff or other inmates.’” Wilson v. Seiter, 501

19 U.S. 294, 302 (1991) (quoting Whitley, 475 U.S. at 320). As such, for Martinez to state an

20 excessive force claim against Rocha, he must plausibly allege Rocha’s actions were not “a

21 good faith effort to maintain or restore discipline,” and that Rocha instead acted

22 “maliciously and sadistically for the very purpose of causing harm.” See Simmons v. G.

23 Arnett, 47 F.4th 927, 932–33 (9th Cir. 2022) (quoting Whitley, 475 U.S. at 320–21). As

24 currently pleaded, he has failed to allege sufficient facts to do so.

25 b. De La Parra and Trujillo

26 Martinez has also failed to allege sufficient facts to state a plausible claim against

27 De La Parr and Trujillo for not personally intervening when the fight broke out. The Eighth

28 Amendment requires prison officials to reasonable measures ensure the safety of prisoners.

1 Farmer v. Brennan, 511 U.S. 825, 833 (1994). The failure of prison officials to protect

2 inmates from attacks by other inmates may rise to the level of an Eighth Amendment

3 violation where prison officials know of and disregard a substantial risk of serious harm to

4 the plaintiff. See id. at 847; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

5 Because “only the unnecessary and wanton infliction of pain implicates the Eighth

6 Amendment,” a plaintiff must allege facts showing the defendant acted with a “sufficiently

7 culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation

8 marks, emphasis, and citations omitted).

9 As currently pleaded, Martinez fails to provide sufficient facts to plausibly allege

10 that De La Parr and Trujillo acted with a sufficiently culpable states of mind when failing

11 to physically intervene to break up the fight between Ochoa and Martinez. As Plaintiff

12 acknowledges, De La Parra and Trujillo did not “fail” to act. Rather, they radioed “Central

13 Control” to notify officers there was a fight inside the facility and request assistance. ECF

14 No. 1 at 4. And while Plaintiff alleges De La Parra and Trujillo later “admitted” in a report

15 that they “kept a safe distance from the incident” this alone is insufficient to plausibly

16 allege deliberate indifference. Indeed, it tends to suggest De La Parra and Trujillo elected

17 to obtain additional back up to protect their officer safety rather than out of deliberate

18 indifference to Martinez’s safety. See Sanchez v. Andruss, 2013 WL 3152395, at *4 (N.D.

19 Cal. 2013) (internal quotations omitted) (“Correctional officers who are present during a

20 violent altercation between prisoners are not deliberately indifferent if they intervene with

21 a due regard for their safety.”); George v. Uribe, 2012 WL 993254, at *8–9 (S.D. Cal.

22 2012) (finding the plaintiff failed to state a failure to protect claim when one officer

23 activated an alarm, one officer responded to the alarm, and both provided verbal commands

24 to stop fighting); Collins v. Kern, 390 F. Supp. 2d 964, 974–75 (E.D. Cal. 2005) (finding

25 defendants were not deliberately indifferent when the evidence showed they took prompt

26 action to stop an inmate fight, secure the area, and ensure the plaintiff received medical

27 care).

28 In sum, even if he had sued them in their individual capacities, as currently pleaded,

1 Martinez has not stated a plausible Eighth Amendment claim against Defendants. See 28

2 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Iqbal, 556 U.S. at 678.

3 D. Leave to Amend

4 Given Plaintiff’s pro se status, the Court GRANTS him leave to amend his

5 Complaint, as detailed below. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015)

6 (“A district court should not dismiss a pro se complaint without leave to amend [pursuant

7 to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the

8 complaint could not be cured by amendment.’”) (quoting Akhtar v Mesa, 698 F.3d 1202,

9 1212 (9th Cir. 2012)).

10 IV. CONCLUSION AND ORDER

11 Accordingly, the Court:

12 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3).

13 2. ORDERS the Secretary of the CDCR, or his designee, to collect the $350

14 filing fee owed in this case by collecting monthly payments from the account in an amount

15 equal to twenty percent (20%) of the preceding month’s income and forward payments to

16 the Clerk of the Court each time the amount in the account exceeds $10 in accordance with

17 28 U.S.C. § 1915(b)(2). All payments must clearly identify the name and case number

18 assigned to this action.

19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

20 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by

21 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

22 4. DISMISSES this civil action in its entirety for seeking money damages from

23 immune defendants and for failure to state a claim pursuant to 28 U.S.C.

24 §§ 1915(e)(2)(B)(ii)–(iii) and 1915A(b)(1)–(2).

25 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which

26 to file a First Amended Complaint which cures the deficiencies of pleading noted in this

27 Order. Plaintiff’s Amended Complaint must be complete by itself without reference to his

28 original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

1 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

2 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

3 || dismissed with leave to amend which are not re-alleged in an amended pleading may be

4 “considered waived if not repled.”’).

5 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final

6 || Order dismissing this civil action based both on failure to state a claim upon which relief

7 || can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and § 1915A(b)(1), and failure to

8 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427

9 || F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the opportunity

10 |/to fix his complaint, a district court may convert the dismissal of the complaint into

11 dismissal of the entire action.”).

12 IT IS SO ORDERED.

13 Dated: February 24, 2025 © ¢

14 Hon. Anthony J. attaglia

15 United States District Judge

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