Escobedo v. Gonzales

• Court: District Court, D. Idaho
• Decided: March 12, 2024
• Docket: 1:23-cv-00406
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR ESCOBEDO, Case No. 1:23-cv-00406-AKB Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE

KIERA BURGIN GONZALES, in her individual capacity, and in her official capacity as an Idaho Correctional Officer; JOSH TEWALT, Director of the Idaho Department of Correction, in his official capacity; and JOHN DOES 1–X, in their official capacities,

Defendants.

The Clerk of Court conditionally filed Plaintiff Omar Escobedo’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. Plaintiff filed the instant action pro se, but he has since retained an attorney and filed an Amended Complaint. The Court now reviews the Amended Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file a second amended complaint if he intends to proceed. 1. Pleading Standards and Screening Requirement A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under modern pleading standards, Rule 8 requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal/Twombly “facial plausibility” standard is met when a complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than . . . unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Id. (internal quotation marks

omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a plausible claim for relief. Id. at 678, 682 (internal quotation marks omitted). Bare allegations amounting to a mere restatement of the elements of a cause of action, without adequate factual support, are not enough. The Prison Litigation Reform Act (“PLRA”)1 requires the Court to review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary

dismissal is appropriate. The Court must dismiss any claims lacking adequate factual support or claims that are frivolous or malicious. 28 U.S.C. §§ 1915(e)(2) & 1915A. The Court also must dismiss claims that fail to state a claim upon which relief may be granted or claims seeking monetary relief from a defendant who is immune from such relief. Id. These last two categories—together with claims falling outside a federal court’s narrow grant of jurisdiction—encompass those claims that might, or might not, have factual support but nevertheless are barred by a well-established legal rule.

1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded

by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before or after opportunity to amend). 2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction (“IDOC”), currently incarcerated at the Idaho State Correctional Center. (Am. Compl., Dkt. 12 at p. 1). Plaintiff alleges that, on an unknown occasion or occasions from June 2020 to December 2021, Defendant Correctional Officer Kiera Burgin Gonzalez sexually abused and assaulted Plaintiff. (Id. ¶ VI). The Complaint contains no other details about the abuse. Plaintiff asserts that Defendant Josh Tewalt, the Director of the IDOC, failed to adequately

train and supervise correctional officers and failed to establish policies and procedures “designed to ensure that correctional officers not sexually abuse” inmates. (Id. ¶ XI). Plaintiff also claims that unidentified prison employees “were also responsible for certain aspects of the administration, operation and supervision” of the prison and failed to establish adequate policies and procedures, including training and supervision, regarding sexual abuse of inmates by correctional officers. (Id. ¶ XV). Plaintiff alleges that unidentified employees, as well as Defendant Tewalt, “either personally or through subordinates,” failed to protect Plaintiff from the abuse. (Id. ¶ XX). Plaintiff also claims that these Defendants retaliated against Plaintiff for reporting the abuse and filing grievances, but he does not describe the alleged retaliation. 3. Discussion Plaintiff has not stated a claim upon which relief may be granted. The Complaint is overly vague and generalized and contains only bare allegations and conclusions that are not entitled to

the presumption of truth. See Iqbal, 556 U.S. at 681 (“It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation [under Rule 8] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) The Court will, however, grant Plaintiff twenty-eight (28) days to further amend the complaint. Any second amended complaint should take into consideration the following. A. Standards of Law Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state

law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Prison officials generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (“[E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct—there is no respondeat superior liability under § 1983. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); Taylor, 880 F.2d at 1045. Additionally, a defendant whose only role in a constitutional violation involved the denial of an administrative grievance cannot be held liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists . . . a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d

642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by alleging a defendant (1) set in motion a series of acts by others that violated the Constitution, or knowingly refused to terminate a series of such acts, which the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training, supervision, or control of his subordinates”; (3) acquiesced in the constitutional deprivation; or (4) engaged in conduct showing “a reckless or callous indifference to the rights of others.” Id. at 1205-09 (internal quotation marks omitted). A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need

for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). Stated another way, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” amounting to deliberate indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011). Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” supporting a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks omitted). If a supervisory or training official had “knowledge of the unconstitutional conditions” through such a pattern of violations— including knowledge of the “culpable actions of his subordinates”—yet failed to act to remedy those conditions, the official can be said to have acquiesced “in the unconstitutional conduct of his subordinates” such that a causal connection between the supervisor and the constitutional violation

is plausible. Starr, 652 F.3d at 1208. A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting the elements of each claim and must allege facts showing a causal link between each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. Plaintiff cites the Fifth, Eighth, Ninth, and Fourteenth Amendments. Am. Compl. ¶ V. However, it appears that only the First and Eighth Amendments apply to Plaintiff’s claims, although these amendments are incorporated to apply to the States through the Fourteenth Amendment. Plaintiff states generally that Defendants also violated the laws “of the State of

Idaho,” but he does not identify any particular state law claim. Id. B. Eighth Amendment Claims The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment. To state a claim under the Eighth Amendment, a plaintiff must show that he is (or was) “incarcerated under conditions posing a substantial risk of serious harm,” or that he has been deprived of “the minimal civilized measure of life’s necessities” as a result of the defendant’s actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires the plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious enough to constitute cruel and unusual punishment, and (2) a subjective standard, that the defendant acted with “deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). To rise to the level of an Eighth Amendment violation, the deprivation alleged must be objectively sufficiently harmful, Farmer, 511 U.S. at 834, or, in other words, sufficiently “grave” or “serious,” Wilson v. Seiter, 501 U.S. 294, 298 (1991). As the United States Supreme Court has

explained: Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks, citation, and alteration omitted). With respect to the subjective prong of an Eighth Amendment claim, a defendant acts with deliberate indifference only if the defendant (1) was aware of the risk to the prisoner’s health or safety, and (2) deliberately disregarded that risk. Farmer, 511 U.S. at 837. That is, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Moreover, even prison officials or medical providers who did know of a substantial risk to an inmate’s health or safety will not be liable under § 1983 “if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. Prisoners have an Eighth Amendment right to be free from sexual abuse by prison officials. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Such claims are analyzed using an excessive force framework. Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020). Sexual abuse by a prison guard is conduct which is “inconsistent with contemporary standards of decency and repugnant to the conscience of mankind,” and therefore violates the

Eighth Amendment. Albers, 475 U.S. at 327 (internal quotation marks omitted). “Because there is no legitimate penological purpose served by a sexual assault, the subjective component of malicious and sadistic intent is presumed if an inmate can demonstrate that a sexual assault occurred.” Bearchild, 947 F.3d at 1143 (9th Cir. 2020) (internal quotation marks omitted). That is, “any act constituting sexual assault is by definition both excessive and unnecessary.” Id. at 1145. An inmate states a colorable sexual abuse claim by plausibly alleging that “a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.” Id.

at 1144. If an official’s conduct “began as an invasive procedure that served a legitimate penological purpose,” such as a search of an inmate, but then allegedly morphed into sexual abuse, “the prisoner must show that the [official’s] conduct exceeded the scope of what was required to satisfy whatever institutional concern justified the initiation of the procedure.” Id. at 1145. Plaintiff offers no details about the alleged sexual abuse committed by Defendant Gonzalez. The Complaint does not reveal what happened or when it happened, other than that it occurred within an eighteen-month period. As a result, Plaintiff’s claim of sexual abuse is implausible. As for the other Defendants, the Complaint does not plausibly suggest that any of these Defendants personally participated in the alleged abuse or that they knew of, and failed to prevent, the abuse—whatever that abuse was. Moreover, the Complaint does not contain sufficient allegations for a reasonable factfinder to infer that, because of a pattern of violations, these Defendants were aware of the need for further training or supervision and, yet, unreasonably failed

to provide it. See Dougherty, 654 F.3d at 900. Thus, these claims are also implausible. C. First Amendment Retaliation Claims The First Amendment includes the right to be free from retaliation for exercising constitutional rights. An inmate asserting a retaliation claim must show the following: “(1) … that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct … that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) [that] the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). “[B]are allegations” of a retaliatory motive are insufficient to support a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985); see also Wood v. Yordy, 753 F.3d 899,

905 (9th Cir. 2014) (“We have repeatedly held that mere speculation that defendants acted out of retaliation is not sufficient.”). Rather, when analyzing a prison official’s proffered reasons for allegedly retaliatory conduct, the Court must “afford appropriate deference and flexibility” to that official. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (internal quotation marks omitted). Not every retaliatory act taken by an official can be considered an adverse action that chills the exercise of protected speech. The proper inquiry asks whether the official’s action “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Envt’l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (internal quotation marks omitted). If it would not, then “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks omitted). See also Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (“The [de minimis] standard achieves the proper balance between the need to recognize valid retaliation claims and the danger of federal courts embroiling themselves in every disciplinary act that occurs in state penal institutions.”) (internal quotation marks and alteration omitted).

A plaintiff asserting a retaliation claim under § 1983 also “must show a causal connection between a defendant’s retaliatory animus and [the plaintiff’s] subsequent injury.” Hartman v. Moore, 547 U.S. 250, 259 (2006) (Bivens action). Retaliatory motivation is not established simply by showing an adverse action by the defendant after protected speech. Instead, the plaintiff must show a nexus between the two. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’”). Therefore, although the timing of an official’s action can constitute circumstantial evidence of retaliation—if, for example, an adverse action was taken shortly after the official learned about an inmate’s exercise of protected conduct—there

generally must be something more than mere timing to support an inference of retaliatory intent. Pratt, 65 F.3d at 808. The causal nexus requirement of a retaliation claim is a “but-for” causation test. If the adverse action would have been taken even without the inmate’s exercise of protected conduct, the plaintiff cannot satisfy the causation element of the retaliation claim. Hartman, 547 U.S. at 260. Finally, even if an inmate proves that his protected conduct was the but-for cause of an adverse action by a prison official, the inmate’s retaliation claim fails so long as that action also reasonably advanced a legitimate penological interest. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (“A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline.”). The state unquestionably has a legitimate interest in maintaining institutional order, safety, and security in its prisons, Rizzo, 778 F.2d at 532, and the “plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the

conduct of which he complains,” Pratt, 65 F.3d at 806. Plaintiff alleges that Defendants retaliated against him for reporting the abuse and for filing grievances, but there are no allegations as to what Plaintiff reported and when, which Defendants knew of the reports and grievances and when, and what allegedly retaliatory action was taken, when, and by whom. Consequently, the Amended Complaint does not state a plausible retaliation claim under the First Amendment. 4. Standards for Second Amended Complaint If Plaintiff chooses to file a second amended complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehrler, 499

U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection between each Defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”) (internal quotation marks and alteration omitted). Rather, for each cause of action against each Defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the Defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the Defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is

unconstitutional; (5) the particular constitutional or statutory provision Plaintiff alleges has been violated; (6) facts alleging the elements of the violation are met—for example, Plaintiff must allege facts satisfying the elements of a First or Eighth Amendment claim; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each Defendant. Further, any second amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. D. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The

proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint). If Plaintiff does not amend within twenty-eight (28) days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”’). ORDER IT IS ORDERED: 1. The Complaint fails to state a claim upon which relief may be granted. Plaintiff has twenty-eight (28) days within which to file a second amended complaint as described above. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if he no longer intends to pursue this case.” 2. If Plaintiff does not file a timely second amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim upon which relief may be granted, failure to prosecute, or failure to comply with a Court order.

i T DATED: March 12, 2024 SF] Amanda K. Brailsford Giron U.S. District Court Judge

2 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not count as a “strike” under 28 U.S.C. § 1915(g).

INITIAL REVIEW ORDER BY SCREENING JUDGE - 13