(PC) Barnes v. Blackburn

Opinion

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3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ANTOINE DESHAWN BARNES, CASE NO. 1:20-cv-00333-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT PLAINTIFF’S ACTION PROCEED AGAINST 12 v. DEFENDANTS BLACKBURN, BROOKS AND HILL FOR EXCESSIVE FORCE IN 13 VIOLATION OF THE EIGHTH J. BLACKBURN, et al., AMENDMENT AND CONSPIRACY TO 14 VIOLATE PLAINTIFF’S EIGHTH Defendants. AMENDMENT RIGHTS AND DISMISSING 15 ALL OTHER CLAIMS 16 (ECF No. 14) 17 TWENTY-ONE (21) DAY DEADLINE 18 Plaintiff Antoine Deshawn Barnes (“Plaintiff”) is a convict held in a county jail 19 proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 20 1983. Plaintiff filed the complaint commencing this action on March 4, 2020. On June 2, 2020, 21 the Court issued a screening order and found that Plaintiff stated several claims but failed to state 22 others. (ECF No. 11). On June 17, 2020, Plaintiff provided a notice to proceed on those claims 23 and attached an amended complaint that referred to his previous complaint. (ECF No. 13).1 That 24 amended complaint is before the Court for screening. 25

1 In its screening order, the Court advised Plaintiff not to do so: 26 Additionally, Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must be complete in itself without 27 reference to the prior or superseded pleading, Local Rule 220. (ECF No. 11 at 11). But because the Court granted Plaintiff leave to amend, the Court will treat the amended 28 complaint as the operative one in this case. 1 The Court has reviewed the complaint and finds that Plaintiff’s complaint states 2 cognizable claims against Defendants Blackburn, Brooks and Hill for excessive force in violation 3 of Plaintiff’s Eighth Amendment rights and for conspiracy to violate Plaintiff’s Eighth 4 Amendment rights. The Court recommends that these claims be allowed to proceed past the 5 screening stage and that all other claims and defendants be dismissed, without prejudice to 6 Plaintiff filing an appropriate petition for a writ of habeas corpus. 7 Plaintiff has twenty-one (21) days from the date of service of these findings and 8 recommendations to file his objections. 9 I. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 12 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 13 “frivolous, malicious, or fails to state a claim upon which relief may be granted,” or that “seek 14 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1), 15 (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may also screen the 16 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 17 may have been paid, the court shall dismiss the case at any time if the court determines that the 18 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 19 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing that 21 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 25 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 26 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 27 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 28 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 1 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal 2 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding 5 that pro se complaints should continue to be liberally construed after Iqbal). 6 II. SUMMARY OF PLAINTIFF’S COMPLAINT 7 Plaintiff’s amended complaint alleges as follows: 8 On February 19, 2020, Defendant J. Blackburn, a deputy, applied metal handcuffs to 9 Plaintiff so tightly that they completely cut off circulation. Then Defendants J. Blackburn, Sheriff 10 Brooks and Sheriff Hill formed a “huddle wall” out of sight of the Pod A6 cameras. Defendant 11 Blackburn twisted Plaintiff’s left hand and wrist, causing wanton infliction, swelling and pain. 12 Defendants Blackburn, Brooks and Hill physically assaulted Plaintiff from behind for not taking 13 paper off in-cell light. 14 Plaintiff also alleges that he was not actively resisting but rather calmly sitting down on 15 the lower bunk bed with both hands behind his back. It is not clear from the complaint whether he 16 was doing so before, during, or after the assault. Plaintiff also alleges Defendant Blackburn is a 17 white nationalist. 18 Plaintiff also alleges that he is being retaliated against by the watch commander of the 19 sheriff’s administration, which is deliberately denying Plaintiff his right to go home free with 20 33% proposition 57 credits because he is doing his prison sentence in Hanford County Jail, which 21 is a contracted facility. 22 III. EVALUATION OF PLAINTIFF’S CLAIMS 23 A. Section 1983 24 The Civil Rights Act under which this action was filed provides:

25 Every person who, under color of any statute, ordinance, regulation, custom, or 26 usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the 27 jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an 28 1 action at law, suit in equity, or other proper proceeding for redress.... 2 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 3 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 4 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 5 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 6 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 7 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 8 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 9 under color of state law, and (2) the defendant deprived him of rights secured by the Constitution 10 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 11 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 12 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 13 ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act 14 which he is legally required to do that causes the deprivation of which complaint is 15 made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) 16 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection 17 may be established when an official sets in motion a ‘series of acts by others which the actor 18 knows or reasonably should know would cause others to inflict’ constitutional 19 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 20 causation “closely resembles the standard ‘foreseeability’ formulation of proximate 21 cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. 22 City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 23 A plaintiff must demonstrate that each named defendant personally participated in the 24 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 25 connection or link between the actions of the defendants and the deprivation alleged to have been 26 suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 27 695 (1978). 28 // 1 B. Excessive Force 2 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 3 restraints on prison officials, who may not… use excessive physical force against prisoners.” 4 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 5 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is 6 … whether force was applied in a good-faith effort to maintain or restore discipline, or 7 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 8 When determining whether the force was excessive, the court looks to the “extent of 9 injury suffered by an inmate…, the need for application of force, the relationship between that 10 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ 11 and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 12 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force 13 generally do not implicate the Eighth Amendment, significant injury need not be evident in the 14 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically 15 use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 16 U.S. at 9. 17 Plaintiff alleges that on February 19, 2020, Defendant Blackburn applied handcuffs to him 18 so tightly that they cut off circulation. Then Defendants Blackburn, Brooks and Hill formed a 19 huddle wall where Pod A6 cameras could not see while Defendant Blackburn twisted his left 20 hand and wrist, causing swelling and pain. Reading his complaint liberally, Plaintiff alleges that 21 he was not resisting arrest at the time but was sitting on his lower bunk bed in handcuffs. Plaintiff 22 also alleges that the underlying cause of this beating was his placing a paper over his cell light. 23 These allegations sufficiently state a claim against Defendants Blackburn, Brooks and Hill for 24 excessive force in violation of the Eighth Amendment to proceed past the screening stage. 25 C. Conspiracy 26 To state a claim for conspiracy under § 1983, Plaintiff must show the existence of an 27 agreement or meeting of the minds to violate constitutional rights, Avalos v. Baca, 596 F.3d 583, 28 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an “actual 1 deprivation of his constitutional rights resulted from the alleged conspiracy,” Hart v. Parks, 450 2 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 3 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the 4 exact details of the plan, but each participant must at least share the common objective of the 5 conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steelworkers of Am. v. Phelps Dodge 6 Corp., 865 F.2d 1539, 1541 (9th Cir.1989)). Additionally, Plaintiff must show that Defendants 7 “conspired or acted jointly in concert and that some overt act [was] done in furtherance of the 8 conspiracy.” Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974). 9 Plaintiff alleges Defendants Blackburn, Brooks and Hill acted in conspiracy and formed a 10 wall to prevent cameras from seeing the excessive force Defendant Blackburn applied to Plaintiff. 11 Based on these allegations, Plaintiff has adequately pleaded a conspiracy claim against those 12 three Defendants to proceed past the screening stage. 13 D. Retaliation 14 Allegations of retaliation against a prisoner’s First Amendment rights may support a 15 section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham 16 v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 17 A retaliation claim requires “five basic elements: (1) an assertion that a state actor took some 18 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 19 such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did 20 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567- 21 68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 22 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). This standard also applies to 23 pretrial detainees. See, e.g., Edmundson v. Flathead Cty. Sheriff Dep't, 654 F. App'x 264 (9th Cir. 24 2016); Williams v. Madrid, 609 F. App'x 421 (9th Cir. 2015). 25 In his notice, Plaintiff claims he is being retaliated against by Kimberely Pederirio with 26 respect to his Proposition 57 credits. He does not name Pederirio as a defendant. He also does not 27 include any details to state a claim. Plaintiff does not allege that he engaged in any protected 28 conduct, that his First Amendment rights were chilled, and that the action does not reasonably 1 advance a legitimate correctional goal. Accordingly, the Court finds that Plaintiff has not alleged 2 sufficient facts to state a claim for retaliation in violation of the First Amendment. Rather, this 3 appears to be an action more properly brought as a writ of habeas corpus. 4 E. Writ of Habeas Corpus 5 “[A] prisoner in state custody cannot use a § 1983 action to challenge the fact or duration 6 of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) 7 instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations and internal quotation marks 8 omitted). 9 Plaintiff’s allegations concerning his Proposition 57 credits appear to challenge the 10 duration of his confinement, for his notice states the retaliation concerning his Proposition 57 11 credits prevents him from going “home free with 33% Proposition 57 credits.” Therefore, this 12 challenge should proceed as a petition for a writ of habeas corpus, not as a § 1983 action. 13 IV. CONCLUSION AND RECOMMENDATIONS 14 The Court has screened Plaintiff’s amended complaint and finds that it states cognizable 15 claims against Defendants Blackburn, Brooks and Hill for excessive force in violation of the 16 Eighth Amendment and conspiracy to violate Plaintiff’s Eighth Amendment rights. The Court 17 also finds that Plaintiff has failed to state any other cognizable claims. 18 Based on the foregoing, it is HEREBY RECOMMENDED that: 19 1. This case proceed on Plaintiff’s claims against Defendants Blackburn, Brooks and 20 Hill for excessive force in violation of the Eighth Amendment and conspiracy to 21 violate Plaintiff’s Eighth Amendment rights; and 22 2. All other claims be dismissed, without prejudice to Plaintiff’s right to file an 23 appropriate petition for a writ of habeas corpus. 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one 26 (21) days after being served with these findings and recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the wOAOe UVM AR SOU RI Ve Yt OMI

1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5} Dated: _ July 8, 2020 [Jee ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28