Myshielle Richelle Jacquez v. R. Gracia

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MYSHIELLE RICHELLE JACQUEZ, Case No. 26-cv-00044-HSG

8 Plaintiff, ORDER OF PARTIAL SERVICE 9 v.

10 R. GRACIA, 11 Defendant.

12 13 Plaintiff, an inmate housed at Mule Creek State Prison, has filed a pro se action pursuant to 14 42 U.S.C. § 1983 against Salinas Valley State Prison (“SVSP”) correctional officer R. Gracia. 15 Now before the Court for review under 28 U.S.C. § 1915A is Plaintiff’s complaint, Dkt. No. 1. 16 Plaintiff has been granted leave to proceed in forma pauperis in a separate order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 Factual Allegations. The complaint alleges that defendant SVSP correctional officer R. 12 Gracia used excessive force on Plaintiff in violation of the Eighth Amendment and retaliated 13 against Plaintiff for filing grievances. The complaint makes the following factual allegations. On 14 September 11, 2023, defendant Gracia was extremely aggressive with Plaintiff. Plaintiff was 15 standing still, awaiting the opening of the door, and defendant Gracia “snatched” her backwards. 16 Plaintiff told defendant Gracia that he did not have to grab Plaintiff like that. Defendant Gracia 17 started making inappropriate comments and said that Plaintiff “don’t have nothing coming as a 18 grievance writer.” Instead of grabbing Plaintiff’s elbow, defendant Gracia continued to grab 19 Plaintiff’s left arm, which caused Plaintiff to injure her back and arm, and left her in discomfort 20 and extreme pain. Due to this incident, Plaintiff’s back gives her pain, she finds it difficult to 21 sleep, and she cannot exercise. Defendant Garcia acted maliciously and sadistically for the 22 purpose of causing harm. When defendant Gracia and Plaintiff entered Plaintiff’s assigned 23 housing, he placed Plaintiff by the trash can and then leaned into Plaintiff with his privates and 24 belly making direct contact with Plaintiff’s skin. Plaintiff told defendant Gracia that he didn’t 25 have to be all on Plaintiff like that and that he was touching Plaintiff inappropriately. Defendant 26 Gracia placed Plaintiff in an intake holding cell. However, intake holding cells are only for 27 holding inmates who are suicidal, fighting, hostile, headed to Ad-Seg, or pose safety concerns. 1 Gracia saying “Continue writing grievances see where it, not far.” See generally Dkt. No. 1. 2 Plaintiff seeks compensatory and punitive damages, and any other relief that the Court deems 3 proper. Dkt. No. 1 at 10. 4 Legal Claims. The complaint alleges that defendant Gracia used excessive force and acted 5 maliciously and sadistically when he snatched Plaintiff backwards, in violation of the Eighth 6 Amendment. The complaint further alleges that defendant Gracia violated the First Amendment 7 by retaliating against Plaintiff for filing grievances. Dkt. No. 1 at 8-9. 8 C. Dismissal with Leave to Amend 9 Liberally construed, the allegation that defendant Gracia told Plaintiff that she “didn’t have 10 nothing coming” as a grievance writer when she complained about being snatched backwards, and 11 placed in her a holding cell for no reason while telling her to “continue writing grievances” states 12 a cognizable claim for First Amendment retaliation. Rhodes v. Robinson, 408 F.3d 559, 567-68 13 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails 14 five basic elements: (1) An assertion that a state actor took some adverse action against an inmate 15 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 16 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal.”) (footnote omitted). 18 The Court DISMISSES the Eighth Amendment excessive force claim for failure to state a 19 claim. The Eighth Amendment is violated when “prison officials maliciously and sadistically use 20 force to cause harm.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). But not every malevolent 21 touch by a prison guard violates the Eighth Amendment. Id. Plaintiff’s assertion that defendant 22 Gracia acted maliciously and sadistically for the purpose of causing harm is conclusory and lacks 23 any facts that would support that conclusion. It is also hard to believe that facts could be alleged 24 to support Plaintiff’s assertion that defendant Gracia’s actions caused her extreme pain and 25 suffering for the past two and a half years: the described actions of “snatching” Plaintiff backward 26 and grabbing her left arm do not seem plausibly likely to cause extreme pain that lasts for years. 27 Even accepting the allegations as true at this stage, Defendant Gracia’s purported actions, even if 1 mankind. Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“An inmate who complains of a push or 2 shove that causes no discernible injury almost certainly fails to state a valid excessive force 3 claim.”); see also Ferrell v. Clackamas Cnty. Sheriff’s Dep’t., No. 93-35042, 1993 WL 501590, at 4 *1 (9th Cir. Dec. 3, 1993) (holding that pushing plaintiff into a desk “would not rise to the level of 5 a constitutional violation” because Eighth Amendment “does not reach de minimis uses of 6 physical force”); Powell v. Well Path Care, No. 22-35242, 2022 WL 17760658, at *1 (9th Cir. 7 Dec. 19, 2022) (affirming dismissal with prejudice of Eighth Amendment excessive force claim at 8 screening stage where inmate alleged that correctional official threw toilet paper roll at him with 9 enough momentum to cause him to flinch, strain his body, and semi-fall back onto cell bunk); 10 McCoy v. Ramirez, 772 F. App’x 462 (9th Cir. 2019) (affirming grant of summary judgment 11 against prisoner-plaintiff on excessive force claim where evidence at most showed that plaintiff 12 was pushed by defendant toward door twice, but neither push was with sufficient force to cause 13 plaintiff to either hit door or lose his footing and plaintiff suffered no significant discernible 14 injury). In the interest of justice, the Court GRANTS Plaintiff leave to amend this claim, if she 15 can truthfully allege facts that would state a cognizable Eighth Amendment excessive force claim 16 against defendant Garcia. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court 17 should grant leave to amend unless pleading could not possibly be cured by allegation of other 18 facts). 19 CONCLUSION 20 For the reasons set forth above, the Court ORDERS as follows. 21 1. The following defendant(s) shall be served: Salinas Valley State Prison correctional 22 officer Garcia. 23 2. Service on the listed defendant(s) shall proceed under the California Department of 24 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 25 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 26 CDCR via email the following documents: the operative complaint (Dkt. No. 1), this order of 27 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 1 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 2 provide the court a completed CDCR Report of E-Service Waiver advising the court which 3 defendant(s) listed in this order will be waiving service of process without the need for service by 4 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 5 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 6 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 7 a waiver of service of process for the defendant(s) who are waiving service. 8 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 9 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 10 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 11 of this order, the summons, and the operative complaint for service upon each defendant who has 12 not waived service. The Clerk also shall provide the USMS a copy of the CDCR Report of E- 13 Service Waiver. 14 3. The Court DISMISSES the Eighth Amendment excessive force claim against 15 defendant Garcia with leave to amend. If Plaintiff wishes to replead this claim, she must file an 16 amended complaint within twenty-eight (28) days of the date of this order. The amended 17 complaint must include the caption and civil case number used in this order, Case No. C 26-cv- 18 0044 HSG (PR) and the words “AMENDED COMPLAINT” on the first page. If using the court 19 form complaint, Plaintiff must answer all the questions on the form for the action to proceed. An 20 amended complaint completely replaces the previous complaint. See Lacey v. Maricopa Cnty., 21 693 F.3d 896, 925 (9th Cir. 2012). Accordingly, Plaintiff must include in her amended complaint 22 all the claims she wishes to present and all the defendants she wishes to sue, including the First 23 Amendment retaliation claim found cognizable below and the defendant ordered served above. 24 Plaintiff may not incorporate material from the prior complaint by reference. Failure to file an 25 amended complaint in accordance with this order in the time provided will result in Dkt. No. 1 26 remaining the operative complaint and this action proceeding against defendant Garcia solely on 27 the First Amendment retaliation claim. The Clerk shall include two copies of the court’s 1 4. As detailed above, the complaint states a cognizable First Amendment retaliation 2 claim against defendant Garcia. 3 5. To expedite the resolution of this case, the Court orders as follows: 4 a. No later than 91 days from the date this order is filed, Defendant must file 5 and serve a motion for summary judgment or other dispositive motion. If Defendant is of the 6 opinion that this case cannot be resolved by summary judgment, Defendant must inform the Court 7 prior to the date the motion is due. A motion for summary judgment also must be accompanied by 8 a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what is required of her 9 to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2012) (notice requirement set 10 out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently with motion 11 for summary judgment).1 12 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 13 must be filed with the Court and served upon Defendant no later than 28 days from the date the 14 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 15 provided later in this order as she prepares his opposition to any motion for summary judgment. 16 c. Defendant shall file a reply brief no later than 14 days after the date the 17 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 18 hearing will be held on the motion. 19 6. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 20 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 21 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 22 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 23 any fact that would affect the result of your case, the party who asked for summary judgment is 24 entitled to judgment as a matter of law, which will end your case. When a party you are suing 25 1 If Defendant asserts that Plaintiff failed to exhaust her available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 makes a motion for summary judgment that is properly supported by declarations (or other sworn 2 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 3 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 4 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 5 documents and show that there is a genuine issue of material fact for trial. If you do not submit 6 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 7 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 8 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 9 not excuse Defendant’ obligation to serve said notice again concurrently with a motion for 10 summary judgment. sWoods, 684 F.3d at 939). 11 7. All communications by Plaintiff with the Court must be served on Defendant’s 12 counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard 13 any document which a party files but fails to send a copy of to his opponent. Until Defendant’s 14 counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant 15 but once Defendant is represented by counsel, all documents must be mailed to counsel rather than 16 directly to Defendant. 17 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 18 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 19 before the parties may conduct discovery. 20 9. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 21 Court informed of any change of address and must comply with the Court’s orders in a timely 22 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 23 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 24 pending case every time she is moved to a new facility. 25 // 26 // 27 // ] 10. Any motion for an extension of time must be filed no later than the deadline sought 2 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 3 she must include the case name and case number for this case on any document she submits to the 4 || Court for consideration in this case. 5 IT IS SO ORDERED. 6 || Dated: 6/1/2026 7 Abapured 5 MLL. HAYWOOD S. GILLIAM, JR. 8 United States District Judge 9 10 1] a 12

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