Harold C. Lee v. Maranda

• Court: District Court, C.D. California
• Decided: November 22, 2022
• Docket: 2:22-cv-07097
• Status: Unknown

Opinion

Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 1 of 27 Page ID #:41

1 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5

6 7 HAROLD C. LEE, Case No. 2:22-cv-07097-FWS (MAR) 8 Plaintiff, 9 v. ORDER DISMISSING COMPLAINT 10 WITH LEAVE TO AMEND MARANDA, ET AL., 11 Defendant. 12 I. 13 INTRODUCTION 14 On November 10, 2022, Harold C. Lee (“Plaintiff”), proceeding pro se, filed 15 the instant Second Amended Complaint (“SAC”). ECF Docket No. (“Dkt.”) 11. For 16 the reasons discussed below, the Court dismisses the SAC with leave to amend. 17 If Plaintiff desires to pursue this action, he is ORDERED to respond by 18 no later than December 23, 2022, by choosing one of the three (3) options 19 discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to 20 timely respond, the Court will recommend that this action be dismissed without 21 further leave to amend and with prejudice for failure to state a claim and follow the 22 Court’s orders. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 2 of 27 Page ID #:42

1 II. 2 BACKGROUND 3 A. PROCEDURAL HISTORY 4 On March 10, 2022, Plaintiff constructively filed1 a Complaint in the Southern 5 District of California, bringing claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) 6 against Defendants located in both the Central and Southern Districts of California. 7 Dkt. 1 at 3–5; 11. On May 31, 2022, the Southern District dismissed the Complaint 8 with leave to amend. Dkt. 5. On July 8, 2022, Plaintiff filed the First Amended 9 Complaint (“FAC”), which omitted the claims brought against the Defendant located 10 in the Southern District. Dkt. 6. Accordingly, on September 29, 2022, the Southern 11 District ordered that the action be transferred to the Central District. Dkt. 7. The 12 Central District received the case file on October 4, 2022. Dkt. 8. 13 On October 18, 2022, the Court dismissed the FAC with leave to amend. Dkt. 14 10. On November 10, 2022, Plaintiff filed the instant SAC. Dkt. 11. 15 B. SUMMARY OF THE SAC 16 Plaintiff brings three (3) claims against a single Defendant, Correctional Officer 17 Maranda, stemming from events at Lancaster State Prison in May 2021. Dkt. 11 at 2– 18 56. Plaintiff’s allegations are similar to those in his FAC, with a few key additions and 19 omissions: 20 On May 17, 2021, Plaintiff informed Defendant Maranda that he was going to 21 “file an appeal against him for allowing inmates to deliver his Trust Account 22 Statement, and other U.S. mail.” Id. at 3. Maranda became hostile and threatened to 23 have Plaintiff removed from the housing unit for complaining. Id. 24 On May 26, 2021, Defendant Maranda was assigned to the floor unit, and 25 Correctional Officer Tapia was assigned to the control gun tower. Id. at 3–4 . 26 27 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. 28 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 2 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 3 of 27 Page ID #:43

1 Protocol mandated that two officers remain on the floor at all times, or the building 2 could not be released for daily activity. Id. Tapia had left to use the restroom just 3 before the p.m. yard was due to be released. Id. Pursuant to protocol, Maranda 4 should have waited until Tapia returned to his post before releasing the p.m. yard. 5 Id. Instead, Maranda violated protocol by going up to the control gun tower to 6 release the p.m. yard himself, leaving just one officer on the floor. Id. 7 When the p.m. yard was released, a couple of inmates began fighting 15 feet 8 away from Plaintiff. Id. at 4. Presumably in a failed attempt to quell the fight, 9 Maranda shot Plaintiff in the chest. Id. Plaintiff had nothing to do with the fight the 10 other inmates were having. Id. 11 Plaintiff appears to allege Maranda: 12 (1) used excessive force in violation of the Eighth Amendment rights by 13 shooting Plaintiff in the chest; 14 (2) retaliated against Plaintiff in violation of the First Amendment by 15 threatening to remove him from the housing unit using excessive force 16 against Plaintiff; and 17 (3) violated Plaintiff’s Fourteenth Amendment equal protection and/or due 18 process rights. 19 Id. at 4–6. Plaintiff seeks damages totaling $2,500,000. Id. at 6. 20 III. 21 STANDARD OF REVIEW 22 Where a plaintiff is incarcerated, a court must screen the complaint under 28 23 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the 24 action is frivolous or malicious, fails to state a claim on which relief may be granted, 25 or seeks monetary relief against a defendant who is immune from such relief. 28 26 U.S.C. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 27 A complaint may be dismissed for failure to state a claim “where there is no 28 cognizable legal theory or an absence of sufficient facts alleged to support a 3 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 4 of 27 Page ID #:44

1 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 2 considering whether a complaint states a claim, a court must accept as true all of the 3 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93 (9th Cir. 4 2011). However, a court need not accept as true “allegations that are merely 5 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 6 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 7 need not include detailed factual allegations, it “must contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 9 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotations omitted). 10 A claim is facially plausible when it “allows the court to draw the reasonable inference 11 that the defendant is liable for the misconduct alleged.” Id. The complaint “must 12 contain sufficient allegations of underlying facts to give fair notice and to enable the 13 opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th 14 Cir. 2011). 15 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 16 however inartfully pleaded, must be held to less stringent standards than formal 17 pleadings drafted by lawyers.’” Woods, 525 F.3d at 889–90. However, liberal 18 construction should only be afforded to “a plaintiff’s factual allegations,” Neitzke v. 19 Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not accept as true 20 “unreasonable inferences or assume the truth of legal conclusions cast in the form of 21 factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 22 If a court finds the complaint should be dismissed for failure to state a claim, a 23 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 24 F.3d 1122, 1126–30 (9th Cir. 2000). Leave to amend should be granted if it appears 25 possible the defects in the complaint could be corrected, especially if the plaintiff is 26 pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 27 1995). However, if, after careful consideration, it is clear a complaint cannot be cured 28 4 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 5 of 27 Page ID #:45

1 by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d at 1107– 2 11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 3 IV. 4 DISCUSSION 5 A. PLAINTIFF STATES AN EXCESSIVE FORCE CLAIM UNDER 6 THE EIGHTH AMENDMENT 7 1. Applicable law 8 Eighth Amendment excessive force turns on the question of “whether force 9 was applied in a good faith effort to maintain or restore discipline or maliciously and 10 sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 11 6 (1992); see also Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). In other 12 words, Plaintiff must show that “correctional officers: (1) acted for the very purpose 13 of causing harm; (2) used excessive and unnecessary force under all of the 14 circumstances; and (3) caused the plaintiff harm.” Reid v. United States, 825 F. 15 App’x. 442, 445 (9th Cir. 2020). Whether an exercise of force is excessive is 16 determined by five (5) factors: “(1) the extent of injury suffered by an inmate; (2) the 17 need for application of force; (3) the relationship between that need and the amount 18 of force used; (4) the threat reasonably perceived by the responsible officials; and (5) 19 any efforts made to temper the severity of a forceful response.” Bearchild v. Cobban, 20 947 F.3d 1130, 1141 (9th Cir. 2020). 21 2. Analysis 22 As stated in the Court’s October 18, 2022 Order, this Court finds that Plaintiff 23 has stated an Eighth Amendment excessive force claim against Maranda: In Marquez v. Gutierrez, the Ninth Circuit has held that “to shoot a 24 passive, unarmed inmate standing near a fight between other inmates, 25 none of whom was armed, when no inmate was in danger of great bodily harm, would inflict unnecessary and wanton pain.” 322 F.3d 689, 692 26 (9th Cir. 2003). The Ninth Circuit acknowledged that the plaintiff in 27 Marquez would be able to establish an Eighth Amendment violation if he were to prove these facts. Id. This is essentially the exact situation 28 Plaintiff presents, with the additional fact that Maranda allegedly released 5 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 6 of 27 Page ID #:46

the p.m. yard in violation of safety protocol. Accordingly, Plaintiff has 1 sufficiently pled an Eighth Amendment violation. 2 3 Dkt. 10 at 6. 4 B. PLAINTIFF STATES A RETALIATION CLAIM UNDER THE 5 FIRST AMENDMENT 6 1. Applicable law 7 “To state a viable First Amendment retaliation claim, a prisoner must allege 8 five elements: “(1) An assertion that [a prison official] took some adverse action 9 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 10 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 11 action did not reasonably advance a legitimate correctional goal.” Rhodes v. 12 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see Pratt v. Rowland, 65 F.3d 802, 13 808 (9th Cir. 1995) (observing prisoner “must show that there were no legitimate 14 correctional purposes motivating the actions he complained of”). 15 Filing grievances is a protected activity and retaliation against prisoners for 16 filing grievances is prohibited as a matter of “clearly established law.” Brodheim v. 17 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes, 408 F.3d at 566). Oral 18 threats to file grievances, as opposed to actually filing grievances, are also protected, 19 and that law is clearly established as of 2012, at the latest. See Gleason v. Placencia, 20 No. 1:19-CV-00539-LJO-EPG (PC), 2020 WL 104693 at *4–6 (E.D. Cal. Jan. 9, 21 2020), report and recommendation adopted, No. 1:19-CV-00539-LJO-EPG (PC), 22 2020 WL 3497001 (E.D. Cal. June 29, 2020) (citing Entler v. Gregoire, 872 F.3d 1031, 23 1039–43 (9th Cir. 2017)). 24 Furthermore, with respect to the chilling effect, Plaintiffs do not need to show 25 their “speech was actually inhibited or suppressed.” Lacey v. Maricopa Cty., 693 F.3d 26 896, 916 (9th Cir. 2012) (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 27 1283, 1300 (9th Cir. 1999)) (internal quotation marks omitted). Rather, courts look to 28 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 7 of 27 Page ID #:47

1 “whether an officials’ acts would chill or silence a person of ordinary firmness from 2 future First Amendment activities.” Id. at 916–17. 3 With respect to the causal element, mere speculation that defendants acted out 4 of retaliation is simply not sufficient to sustain a retaliation claim. Wood v. Yordy, 5 753 F.3d 899, 905 (9th Cir. 2014). However, “[b]ecause direct evidence of retaliatory 6 intent rarely can be pleaded in a complaint, allegation of a chronology of events from 7 which retaliation can be inferred is sufficient to survive dismissal.” Watison v. Carter, 8 668 F.3d 1108, 1114–15 (9th Cir. 2012) (citing Pratt, 65 F.3d at 808). 9 Finally, with respect to the final element, a plaintiff successfully pleads that the 10 adverse action did not reasonably advance a legitimate correctional goal by alleging, in 11 addition to a retaliatory motive, that the defendant’s actions were “arbitrary and 12 capricious” or that they were “unnecessary to the maintenance of order in the 13 institution.” Watison, 668 F.3d at 1114–15. 14 2. Analysis 15 Here, Plaintiff has stated a retaliation claim against Maranda. With respect to 16 the third element, Plaintiff alleges that he was engaged in the protected activity of 17 threatening to file grievances against Maranda. Dkt. 11 at 3; see also Gleason, 2020 18 WL 104693 at *4–6 (holding threats to file grievances are constitutionally protected). 19 With respect to the first and fifth elements, Plaintiff alleges that Maranda immediately 20 threatened to transfer Plaintiff out of his housing unit, and just over a week later, shot 21 Plaintiff in the chest, seemingly without a legitimate penological purpose. Dkt. 11 at 22 4–5. With respect to the second element, given the timeline of events and Maranda’s 23 allegedly hostile response to Plaintiff’s threats, the Court finds that Plaintiff’s 24 allegations are sufficient to raise an inference of retaliatory motive. Finally, with 25 respect to the fourth element, an allegedly excessive use of force would certainly be 26 sufficient to chill a person of ordinary firmness from filing grievances. Accordingly, 27 taking this all together, Plaintiff has stated a retaliation claim against Defendant 28 Maranda. 7 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 8 of 27 Page ID #:48

1 C. PLAINTIFF FAILS TO STATE A DUE PROCESS OR EQUAL 2 PROTECTION CLAIM UNDER THE FOURTEENTH 3 AMENDMENT 4 1. Applicable law 5 The Due Process Clause of the Fourteenth Amendment protects individuals 6 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. “A 7 procedural due process claim has two distinct elements: (1) a deprivation of a 8 constitutionally protected liberty or property interest and (2) a denial of adequate 9 procedural protections.” Wilson v. Lynch, 835 F.3d 1083, 1098 (9th Cir. 2016) 10 (internal quotations and citation omitted). 11 In order to establish the deprivation of a protected liberty interest, a prisoner 12 must allege an “atypical, significant deprivation in which a State might conceivably 13 create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995) (holding 14 “segregated confinement did not present the type of atypical, significant deprivation 15 in which a State might conceivably create a liberty interest”). In order to establish the 16 denial of procedural protections afforded by due process, a prisoner must allege denial 17 of certain requirements, including written notice, the right to call witnesses, the right 18 to present documentary evidence, and the right to have a written statement by the 19 factfinder as to the evidence relied upon and the reasons for the disciplinary action 20 taken. See Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003). 21 The Equal Protection Clause requires the State to provide all persons in “its 22 jurisdiction with equal protection of the laws[,]” U.S. Const. amend. XIV § 1. D, and 23 that “all persons similarly situated should be treated alike.” City of Cleburne v. 24 Cleburne Living Ctr., 473 US. 432, 439 (1985). “To state a claim under 42 U.S.C. § 25 1983 for [an equal protection violation], a plaintiff must show that the defendants 26 acted with an intent or purpose to discriminate against the plaintiff based upon 27 membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th 28 Cir. 1998), cert. denied, 525 U.S. 1154 (1999). An equal protection claim does not 8 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 9 of 27 Page ID #:49

1 arise “by conflating all persons not injured into a preferred class receiving better 2 treatment than the plaintiff.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 3 (9th Cir. 2005) (internal quotations and citation omitted). 4 Alternatively, a successful equal protection claim may also be brought by a 5 “class of one,” where the plaintiff alleges that she has been intentionally treated 6 differently from others similarly situated and that there is no rational basis for the 7 difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); 8 see also Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008) (recognizing that 9 “an equal protection claim can in some circumstances be sustained even if the plaintiff 10 has not alleged class-based discrimination, but instead claims that she has been 11 irrationally singled out as a so-called ‘class of one.’” (internal citation omitted)); North 12 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (“When an equal 13 protection claim is premised on unique treatment rather than on a classification, the 14 Supreme Court has described it as a ‘class of one’ claim.”). 15 To succeed on a class of one claim, a plaintiff must demonstrate that defendant 16 (1) intentionally (2) treated plaintiff differently than others similarly situated (3) 17 without rational basis. Gerhart v. Lake Cnty, Mont., 637 F.3d 1013, 1022 (9th Cir. 18 2011). For treatment to be “intentional,” the plaintiff must show that the State 19 intended to subject the plaintiff to differential treatment. Id. The plaintiff must also 20 provide evidence displaying how the treatment plaintiff received was, in fact, different 21 from others who are similarly situated. Id. Lastly, the plaintiff must provide evidence 22 that there was no rational basis for the distinction in the treatment that plaintiff 23 received versus those similarly situated. Id. at 1023 (referencing Willowbrook, 528 24 U.S. at 564). 25 However, in cases where plaintiffs bring both a retaliation claim and an equal 26 protection claim based on retaliation, other federal courts have considered the 27 retaliation claim, and dismissed the equal protection claim as duplicative. See 28 Occhionero v. City of Fresno, No. CVF 05-1184 LJO-SMS, 2008 WL 2690431, at *8 9 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 10 of 27 Page ID #:50

1 (E.D. Cal. July 3, 2008), aff’d, 386 F. App’x 745 (9th Cir. 2010) (noting “[f]ederal 2 courts have precluded assertion of First Amendment claims as Equal Protection 3 claims,” collecting cases, and holding the plaintiff’s equal protection claim “of 4 different treatment in retaliation for speech is a First Amendment claim which does 5 not invoke the Equal Protection Clause”); Olson v. Bynum, No. 2:20-CV-2481-TLN- 6 KJN PS, 2022 WL 2052696, at n.14 (E.D. Cal. June 7, 2022) (noting the plaintiff’s 7 equal protection and retaliation claim were “substantively indistinguishable” and 8 warning that the court may recommend dismissal of the equal protection claim as 9 duplicative). 10 2. Analysis 11 As an initial matter, it is unclear whether Plaintiff brings a due process claim, an 12 equal protection claim, or both. Plaintiff cites the Fifth and Fourteenth Amendments 13 in the heading for his first cause of action. Dkt. 11 at 4. However, despite bringing a 14 due process claim in previous complaints, Plaintiff no longer cites due process 15 anywhere in the instant SAC. Rather instead, he appears to bring an equal protection 16 claim based on retaliation. Id. at 4–5 (“[T]he defendant acted… to deprive Plaintiff of 17 his rights to equal protection of law and be free [of cruel] and unusual punishment in 18 retaliation.”). To the extent Plaintiff brings this equal protection claim based on 19 retaliation, it would be duplicative of his retaliation claim and thus the claim should be 20 dismissed. See Occhionero, 2008 WL 2690431, at *8. 21 To the extent Plaintiff instead attempts to bring a due process claim, as he did 22 in the FAC, Plaintiff has not explained, nor can the Court infer, a basis for such a 23 claim. Accordingly, any Fourteenth Amendment claim based on an alleged violation 24 of due process or equal protection rights is subject to dismissal. 25 /// 26 /// 27 /// 28 /// 10 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 11 of 27 Page ID #:51

1 V. 2 LEAVE TO FILE A THIRD AMENDED COMPLAINT 3 For the foregoing reasons, the SAC is subject to dismissal. As the Court is 4 unable to determine whether amendment would be futile, leave to amend is granted. 5 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). 6 Accordingly, IT IS ORDERED THAT by December 23, 2022 Plaintiff 7 must choose one of the following three (3) options: 8 9 1. Plaintiff may file a Third Amended Complaint to attempt to cure the 10 deficiencies discussed above. If Plaintiff chooses to file a Third Amended Complaint, 11 he must clearly designate on the face of the document that it is the “Third Amended 12 Complaint,” it must bear the docket number assigned to this case, and it must be 13 retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff 14 shall not include new defendants or allegations that are not reasonably related to the 15 claims asserted in the SAC. In addition, the Third Amended Complaint must be 16 complete without reference to the SAC, FAC, Complaint, or any other 17 pleading, attachment, or document. 18 The Clerk of Court is directed to mail Plaintiff a blank Central District 19 civil rights complaint form to use for filing the Third Amended Complaint, 20 which the Court encourages Plaintiff to use. The Clerk of Court is also 21 directed to mail Plaintiff a copy of his SAC (Dkt. 11) for his reference. 22 Plaintiff is advised that this Court’s determination that the allegations in the 23 SAC are insufficient to state a particular claim should not be seen as dispositive of 24 that claim. Accordingly, Plaintiff is not required to omit any claim or defendant 25 in order to pursue this action. However, if Plaintiff decides to pursue a claim in a 26 Third Amended Complaint that this Court has found to be insufficient, then this 27 Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the 28 assigned district judge a recommendation that such claim be dismissed with prejudice 11 Case □□□□□□□□□□□□□□□□□□□□□ Document 12 Filed 11/22/22 Page12of27 Page ID #:52

1 | for failure to state a claim, subject to Plaintiffs right at that time to file Objections 2 | with the district judge as provided in the Local Rules Governing Duties of Magistrate 3 | Judges. 5 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 6 | stand on the allegations in his SAC. If Plaintiff chooses to stand on the SAC despite 7 | the deficiencies in the claims identified above, then the Court will submit a 8 | recommendation to the assigned district judge that portions of the SAC be 9 | dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at 10 | that time to file Objections with the district judge as provided in the Local Rules 11 | Governing Duties of Magistrate Judges. 12 13 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 14 | pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed 15 | to mail Plaintiff a blank Notice of Dismissal Form, which the Court 16 | encourages Plaintiff to use if they choose to voluntarily dismiss the action. 17 18 Plaintiff is explicitly cautioned that failure to timely file a Third 19 | Amended Complaint will result in this action being dismissed with prejudice 20 | for failure to state a claim, or for failure to prosecute and/or obey Court orders 21 | pursuant to Federal Rule of Civil Procedure 41(b). 22 23 | Dated: November 22, 2022 7. a 24 HONORABLE MARGO A. ROCCONI 95 United States Magistrate Judge 26 27 28 12

Odas2 22220,000097F DO COROLD Ce LEE Patera Coomennn 21 Fidddl 1122122 Palagd BePa7 PRagdIDHES3 P.O. BOX ‘92 ,B1-22-2L CLERK, U.S. DI : T CHOWCHILLA, CA. 93610 NOV 10 2022

1 |[In Pro Per CENTRAL ICZOF CALC

2 UNITED STAT ES DISTRICT cOURT

3 CENTRAL DIS TRICT OF CA LIFORNTIA

4 ||HAROLD €. LEE Case No- -CV-©7097 feyys 5 Plaintiff “14R,

6 GOMPLAINT

7 VS. 42 U.S.C.§ 1983

; PLAINTIFF'S SECOND AMENDED COMPLAINT 9 1} MARANDA, . CORECTIONAL OFFICER 10 || SUED IN INDIVIDUAL CAPACITY FIRST; FIFTH; EIGHTH; FOURTEENTH 11 ! DEFENDANTS -|.DEMAND FOR JURY TRIAL 12

13 14 A. INTRODUCTION 15 16 || 4.Plaintiff, a Prisoner of the State of California brings this dam-

17 || ages action to redress defendant's violations of his constitutional

18 || rights, of Freedom of Speech, free from retaliatory and crule and

19 || unusal punishment actions by Prison Official, (2)Equal protection of

20 || 1aw and the "CHILLING EFFECT" thereof. 21 22 2, On, May 26, 2021 , Defendant MARANDA retaliated against Plaintif

23 || for exercising Free Speech because Plaintiff informed defendant

24 || MARANDA that he would file a written grievance against him on oF

25 || about May 17th 2021 at Lancaster State Prison inLos Angeles, Calif-

26 || ornia. Plaintiff was injured and suffered “CHILLING EFFECT" as a

27 || proximate cause of defendant's actions of retaliation against Plai-

28 ll ntiff for his rights to bring grievance and Freedom of Speech. -{ = | □ | □

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1 || 3. Plaintiff seeks damages pursuant to 42 U.S.C. section § 1983,

2 \land the FIRST, and FOURTEEMTH, FIFTH Amendments to the United States

a Constitution. 5 B. JURISDICTION AND VENUE 7 4. Plaintiff has suffered injury that is traceable to the actions

8 |lof the defendant and the action is a case Or controversy over which

g || this court has the Jurisdition under Article III of the UNITED STATES

10 || CONSTITUTION. 11 12 || 2. This case is brought pursuant to 42 U.S.C. § 1983. Jurisdiction

13 lig based upon 28 U.S.C. §1331 and 1343. 14 15 3. Venue is proper in this court under 28 U.S.C. 1391(b) because

16 || plaintiff's claims for relief arose in this district.

17 18 INTRADISTRICT ASSIGNMENT 20 4. Plaintiff's claims for relief arose in Lancaster State Prison

21 || which is located in the City of Lancaster and the County of Los

22 || Angeles in the State of California. United States District Court

23 || for the Central District of California, Civil local rules requires

o4\\ that all cival actions arising in The County of Los Ageles shall be

25 assigned to the Los Angeles Divition.

26 27 INTRODUCTION OF PARTIES

28 5, Plaintiff, Harold C. Lee was at all times mentioned hevéin 222°

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| incarcerated at Lancaster State Prison in Lancaster, California. 3 6. Defendant MARANDA, was at all times mentioned herein was the

4 || Correctional Officer assigned to housing unit 1 at Lancaster State

5 || Prison. He was an employee of California Department of Corrections

6 || and Rehabilitation (hereafter CDCR), and he operated under the sur-

7 || pervision of Correctional Captain. He is sued in his 8 individual capasity. At all times mentioned herein MARANDA acted

9 || within the course and scope of his employment and under the color of

i0 || law. In the capacity of correctional officer defendant was respons- i1 || ible for the safe custody of inmates assigned to Facility 1. Defen- 12 || dant's retaliatory action of using his state issued fire arm to in- 13 || fict unwarrant, wanton force upon plaintiff causing plaintiff to

14 || suffer physical injury was a proximate cause of the CHILLING EFFECT

15 |} and deprivation of Plaintiff's constitutional right to equal protec- 16 || tron of Law and to be free of crule and usual punishment by prison

17 || staff. 18 19 FACTUAL ALLEGATIONS COMMON TO ALL CAUSE OF ACTION 20 21 7. On or about May 17th, 20215 Plaintiff :was housed at Lancaster

22 |l State Prison. At that time Plaintiff informed Defendant Maranda that 93 || he was going to file an appeal against him for allowing inmates to

94 || deliver his Trust Account Statement, and other U.S. Mail. Defendant

95 ||Maranda became hostile using profane language and threatened to have

16 || Plaintiff removed from the housing unit for complaining 27 28 8. On May 26th, 2021, Defendant Maranda was assigned to building 1,

| -3- ||

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; || floor unit. C/O Tapia was assigned to building 1 control gun tower,

> |land had to use the rest room while p.m. yard was bing released. At □

3 || that time C/O Maranda went up to the building control gun tower, and

4 ||violated protocal when he released the building for p.m. yard. Whil

5 ||the yard was being released a couple of inmates began fighting app- 6 roxamently fifteen (15) feet away from Plaintiff. Defendant Maranda

7 ||began shooting on the yard and shot Plaintiff, even though Plaintiff g ||had nothing to do with the fight between the above captioned inmates | 9 || Defendant's shooting of Plaimtiff was arbitrary, and capricious, and

10 ||served no ligitimate penological goals. 11 12 CAUSE OF ACTION VIOLATION OF 42 U.S.C. § 1983 13 DENIAL OF RIGHTS UNDER THE FIRST, FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE 14 UNITED STATES CONSTITUTIONS 15 9. Plaintiff incorporates by rference and re-alleges of paragraphs 16 || 1 through 9. 17 18 10. This is an action at law to redress the deprivation under the

19 ||color of State Ordiances, regulations, customs, or usage of rights, 20 ||privileges and immunities secured to plaintiff by the First; Fifth; 21 ||Eighth, and Fourteenth Amendments. to the Constitutions of the United 97 || States of America, and arising under the laws and statutes of the

23 || State of California. 24 25 11. During all times mentioned herein, the said defendant acted

26 || under color of law, to wit, under the statute, ordinance, regulation

>7 customs, and usages of the State of California. The defendant, 9g || separately and in concert, acted outside of the scope of his

| □

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i jurisdiction and without authorization of law, willfully and knowing

2 \|\ly to deprive Plaintiff of his rights to equal protection of law and

3 |l|be free crule and unsual punishment in retaliation.

i

5 12. As a direct and proximate result of the violation of Plaintiff£'

6 || privileges and immunities secured to him by the laws of this state

7 \\and nation, Plaintiff was injured, and damaged herein. 9 SECOND CAUSE OF ACTION RETALIATION FOR EXERCISING CONSTITUTIONAL RIGHTS 10 il 13. Plaintiff incorprated by realleges as thoroughly set forth

2 herein the allegations of paragraphes 1 through 13.

13 14 14. Defendant, was deliberately indifferent to plaintiff's rights

15 freedom of speech and freedom to file prison grievance without

16 || punishiment. 17 18 15. As a direct and proximate result and privileges and immunities

19 ||secured to plaintiff by law of this state and nation.

20 21 16. By reason of the aforesaid, plaintiff suffered physical injurie

22 |}combined with emotional distress. 23 94 THIRD CAUSE OF ACTION CRULE AND UNUSAL PUNISHMENT 25 DENIAL OF EQUAL PROTECTION

26 \| 17. Plaintiff incorporates by reference and realleges as thoroughly

97 \jset forth herein the allegations of paragraphs 1-17.

28 5. □

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1 18. Defendant deliberately and unjustifiably shot Plaintiff i : 2 causing unwarrant harm and pain to Plaintiff's person denying Plain+ 3 tiff's person denying Plaintiff his constitutional right under the | 4 |Eighth Amensment to be free from crule and unusal punishment desp- | 5 ite the fact Plaintiff was not engaged or involved in any illegal | 6 activity.

8 19. By reason of the aforesaid, Plaintiff has been damaged. 9 WHEREFORE Plaintiff prays judgements against Defendant as follows: 10. (1) Compensatory Damages in assess of $1,000,000-°° | (2) Punitive Award of $1,500,000-°° ll, (3) Attorney's fees and costs of this suite herein incurred. _ (4) For such other and further relief as the Court may deem 12. proper 13 Plaintiff request a J: Trial / ~ 14 DATED: // 7 BY: □ 15, IN PRO PER

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Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 21 of 27 Page ID #:61

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER Plaintiff(s), v. NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c) Defendant(s). PLEASE TAKE NOTICE: (Check one) G This action is dismissed by the Plaintiff(s) in its entirety. G The Counterclaim brought by Claimant(s) is dismissed by Claimant(s) in its entirety. G The Cross-Claim brought by Claimants(s) is dismissed by the Claimant(s) in its entirety. G The Third-party Claim brought by Claimant(s) is dismissed by the Claimant(s) in its entirety. G ONLY Defendant(s) is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim brought by . The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c). Date Signature of Attorney/Party NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive pleading or prior to the beginning of trial. CV-09 (03/10) NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c) Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 22 of 27 Page ID #:62 FULL NAME

COMMITTED NAME (if different) FULL ADDRESS INCLUDING NAME OF INSTITUTION PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER To be supplied by the Clerk PLAINTIFF, v. CIVIL RIGHTS COMPLAINT PURSUANT TO (Check one) G 42 U.S.C. § 1983 DEFENDANT(S). G Bivens v. Six Unknown Agents 403 U.S. 388 (1971) A. PREVIOUS LAWSUITS 1. Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No 2. If your answer to “1.” is yes, how many? Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.)

CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 1 of 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 23 of 27 Page ID #:63 a. Parties to this previous lawsuit: Plaintiff Defendants b. Court

c. Docket or case number d. Name of judge to whom case was assigned e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?) f. Issues raised: g. Approximate date of filing lawsuit: h. Approximate date of disposition B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? G Yes G No 2. Have you filed a grievance concerning the facts relating to your current complaint? G Yes G No If your answer is no, explain why not

3. Is the grievance procedure completed? G Yes G No If your answer is no, explain why not

4. Please attach copies of papers related to the grievance procedure. C. JURISDICTION This complaint alleges that the civil rights of plaintiff (print plaintiff's name) who presently resides at , (mailing address or place of confinement) were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at (institution/city where violation occurred) CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 2 of 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 24 of 27 Page ID #:64 on (date or dates) , , . (Claim I) (Claim II) (Claim III) NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants. 1. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: 2. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

3. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 3 of 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 25 of 27 Page ID #:65 4. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

5. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 4 of 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 26 of 27 Page ID #:66 D. CLAIMS* CLAIM I The following civil right has been violated:

Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right.

*If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same outline. CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 5 of 6 Case 2:22-cv-07097-FWS-MAR Document 12 Filed 11/22/22 Page 27 of 27 Page ID #:67 E. REQUEST FOR RELIEF I believe that I am entitled to the following specific relief:

(Date) (Signature of Plaintiff)

CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 6 of 6