(PC) Godinez v. Algazzaly

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL GODINEZ, Case No. 1:19-cv-01746-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS AND 13 v. DEFENDANTS

14 SCOTT KERNAN, et al., (Doc. 10)

15 Defendants. 21-DAY DEADLINE

16 Clerk of the Court to Assign a District Judge

17 18 Plaintiff Rafael Godinez alleges the defendants subjected him to excessive force and 19 retaliation. (Doc. 10.) The Court finds that Plaintiff’s second amended complaint states 20 cognizable claims against Defendants Algazzaly, Gray, and Herrick, and the four Doe defendants; 21 but it does not state any cognizable claims against the remaining defendants. Given that Plaintiff 22 has received two opportunities to amend, the Court finds that further amendment would be futile. 23 See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Therefore, the Court recommends 24 that the non-cognizable claims and associated defendants be dismissed. 25 I. SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 1 frivolous or malicious, fails to state a claim on which relief can be granted, or seeks monetary 2 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should 3 dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to 4 support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir. 1990). 6 II. PLEADING REQUIREMENTS 7 A. Federal Rule of Civil Procedure 8(a) 8 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 9 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 10 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 11 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 12 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 13 quotation marks and citation omitted). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 16 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 17 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 18 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 19 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 20 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 21 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 22 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 23 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 24 of a civil rights complaint may not supply essential elements of the claim that were not initially 25 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 26 quotation marks and citation omitted), and courts “are not required to indulge unwarranted 27 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 1 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 2 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 3 B. Linkage and Causation 4 Section 1983 provides a cause of action for the violation of constitutional or other federal 5 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 6 section 1983, a plaintiff must show a causal connection or link between the actions of the 7 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 8 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 9 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 10 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 11 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 12 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 13 C. Federal Rules of Civil Procedure 18 and 20 14 Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief to “join, 15 as independent or alternative claims, as many claims as it has against an opposing party.” 16 However, a plaintiff may not join unrelated claims against multiple defendants in a single action. 17 See Fed. R. Civ. P. 20(a)(2); see also Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) 18 (“unrelated claims against different defendants belong in separate lawsuits”). A plaintiff may 19 bring claims against more than one defendant only if (1) the claims arise out of the same 20 transaction, occurrence, or series of transactions or occurrences, and (2) there is a question of law 21 or fact common to all defendants. Fed. R. Civ. P. 20(a)(2); see Coughlin v. Rogers, 130 F.3d 22 1348, 1351 (9th Cir. 1997). 23 III. PLAINTIFF’S ALLEGATIONS 24 Plaintiff’s claims stem from incidents at California Correctional Institution (CCI). (See 25 Doc. 10 at 3-5.) In Claim I, Plaintiff alleges that, on January 8, 2017, Correctional Officers 26 Algazzaly and Herrick as well as four unknown officers (Does 1 through 4) subjected him to 27 excessive force. (Id. at 5.) Plaintiff states that the officers entered his cell “in full riot gear” and 1 down as Algazzaly and Herrick punched him in the ribs, buttocks, and arms, causing visible 2 injuries “all over [him].” (Id.) Plaintiff states that, when Correctional Lieutenant Tingley 3 interviewed him about the incident, Tingley stated “some . . . don’t respond to anything else.” (Id. 4 at 6.) Tingley also asked if Plaintiff would “keep pursuing this” and “poking the bear.” (Id.) 5 Plaintiff alleges that then-CDCR Secretary Kernan, CCI Warden Sullivan, and Deputy Warden 6 Jhonson “were implementing a policy and . . . practice of excessive force and cover up.” (Id.) 7 In Claim II, Plaintiff alleges that Correctional Officer Gray issued a false rules violation 8 report against him on May 2, 2017, in retaliation for his filing a grievance regarding the January 8 9 incident and his “advocacy for improved prison conditions.” (Id.) Gray charged him with 10 “possession of dangerous contraband” for a razor that was “allegedly hidden in [his] mattress.” 11 (Id.) Plaintiff filed an administrative appeal regarding the alleged retaliatory action. (Id.) Plaintiff 12 states that Correctional Lieutenant Nunley interviewed Plaintiff’s cellmate about the allegation 13 but omitted the interview from his report “[i]n a conspiracy to cover-up the fabricated . . . 14 charge.” (Id. at 6-7.) 15 In Claim III, Plaintiff alleges that, on March 8, 2017, he attempted to file an 16 administrative appeal regarding the prison’s “refusal to adhere to legal mail postage [and] provide 17 legal mail indigent envelopes.” (Id. at 7.) Plaintiff states that Appeals Coordinator Wood and 18 “AGPA” Zanchi screened out his appeal on four occasions. (Id.) On April 3, 2017, Zanchi 19 notified Plaintiff that he “was in violation of the excessive appeal submission regulation,” which 20 restricted him to filing one appeal every 30 days. (Id.) 21 IV. DISCUSSION 22 A. Excessive Force 23 The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and 24 unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 25 (1986) (internal quotation marks and citations omitted). As courts have observed, “[p]ersons are 26 sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. 27 Iowa 1992) (quoting Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977)) (internal quotation 1 that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 2 834 (1994) (internal quotation marks and citation omitted). 3 A correctional officer engages in excessive force in violation of the Cruel and Unusual 4 Punishments Clause if he (1) uses excessive and unnecessary force under all the circumstances, 5 and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith 6 effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). “[W]henever 7 prison officials stand accused of using excessive physical force . . ., the core judicial inquiry is . . . 8 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 9 and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this 10 determination, courts may consider “the need for application of force, the relationship between 11 that need and the amount of force used, the threat reasonably perceived by the responsible 12 officials, and any efforts made to temper the severity of a forceful response.” Id. at 7. Courts may 13 also consider the extent of the injury suffered by the prisoner. Id. However, the absence of serious 14 injury is not determinative. Id. 15 Plaintiff states cognizable excessive force claims against Correctional Officers Algazzaly 16 and Herrick and the four Doe defendants. Plaintiff alleges the officers held him down and 17 punched him repeatedly “until they became tired,” causing him significant injuries. (Doc. 10 at 5- 18 6.) The Court acknowledges that a full consideration of the Hudson factors at the screening stage 19 —such as the government’s claimed need for the application of force—is untenable. Here, the 20 Court only finds that Plaintiff sets forth claims of excessive force that are plausible on their face. 21 See Iqbal, 556 U.S. at 678. 22 Plaintiff does not state a cognizable claim against the remaining defendants. Plaintiff’s 23 allegations regarding Correctional Lieutenant Tingley’s inappropriate statements during his 24 interview (Doc. 10 at 6) are insufficient to show that Tingley’s actions or inactions caused the 25 excessive force of which he complains. See Johnson, 588 F.2d at 743. Plaintiff also alleges that 26 former CDCR Secretary Kernan, CCI Warden Sullivan, and Deputy Warden Jhonson “were 27 implementing a policy . . . of excessive force and cover up.” (Doc. 10 at 6.) However, he provides 1 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 2 556 U.S. at 678 (citation omitted). Plaintiff’s citations to reports from 2015 and 2019 concerning 3 High Desert State Prison and Salinas Valley State Prison, (Doc. 10 at 6), do not provide facts 4 regarding the actions or inactions of Kernan, Sullivan, or Johnson, or of the customs and practices 5 at CCI, where Plaintiff was incarcerated. 6 To the extent that Plaintiff names Kernan, Sullivan, Jhonson, and Tingley as defendants 7 simply because they held supervisory positions, the Court notes that section 1983 does not 8 impose liability on a supervisor merely because his or her subordinate has violated Plaintiff’s 9 rights. See Iqbal, 556 U.S. at 676-77. To impose liability under section 1983, a plaintiff must 10 allege specific misdeeds that each defendant committed, rather than setting forth the misdeeds of 11 those he or she supervised. See id. 12 B. Retaliation 13 A claim for retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 14 2012). First, the plaintiff must allege that he engaged in protected activity. Id. For example, filing 15 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the 16 right to access the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson, 17 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took 18 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff 19 must allege a causal connection between the adverse action and the protected conduct.” Id. In 20 other words, the plaintiff must claim the defendant subjected him to an adverse action because of 21 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege 22 that the official’s acts would chill or silence a person of ordinary firmness from future First 23 Amendment activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation 24 omitted). “Fifth, the plaintiff must allege ‘that the prison authorities’ retaliatory action did not 25 advance legitimate goals of the correctional institution. . . .’” Id. (quoting Rizzo, 778 F.2d at 532). 26 Plaintiff states a cognizable retaliation claim against Correctional Officer Gray. Plaintiff 27 alleges that he engaged in protected conduct, i.e., filing an inmate grievance regarding the 1 action because of it, i.e., issuing a false rules violation report against him. (Doc. 10 at 6.) 2 Plaintiff does not state a cognizable claim against Correctional Lieutenant Nunley. 3 Plaintiff alleges that, in his report on Plaintiff’s grievance regarding Gray’s alleged retaliation, 4 Nunley omitted his interview of Plaintiff’s cellmate “[i]n a conspiracy to cover up the fabricated 5 dangerous contraband possession charge.” (Id. at 6-7.) However, Plaintiff provides no facts to 6 support this conclusory statement. See Iqbal, 556 U.S. at 678. To the extent Plaintiff challenges 7 Nunley’s processing of his administrative appeal itself, the Court notes that Plaintiff does not 8 have a “constitutional entitlement to . . . specific inmate grievance procedure[s].” Ramirez v. 9 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted). 10 Plaintiff’s claims against Appeals Coordinator Wood and “AGPA” Zanchi are also not 11 cognizable. Plaintiff’s allegations against these defendants are limited to their processing of his 12 March 8, 2017, administrative appeal regarding his mail. (Doc. 10 at 7-8.) As stated above, 13 Plaintiff has no constitutional right to specific appeals procedures. Additionally, Plaintiff provides 14 no facts suggesting that these defendants’ rejection of his appeal was done in retaliation for his 15 engagement in any protected activity. 16 C. Misjoinder of Defendants 17 As explained in section II.C, supra, a plaintiff may not join unrelated claims against 18 multiple defendants in a single action. See Fed. R. Civ. P. 20(a)(2). A plaintiff may bring claims 19 against more than one defendant only if the claims arise out of the same transaction, occurrence, 20 or series of transactions or occurrences. See Fed. R. Civ. P. 20(a)(2); Coughlin, 130 F.3d at 1351. 21 Plaintiff’s claims against Defendants Wood and Zanchi do not arise out of the same 22 transactions or occurrences as his claims against the remaining defendants. As explained above, 23 the claims against Wood and Zanchi are for the alleged improper screening of a grievance he filed 24 on March 8, 2017, regarding the processing of his mail. (Doc. 10 at 7-8.) Plaintiff’s claims against 25 the other defendants, on the other hand, are for (1) the alleged use of excessive force on January 26 8, 2017, and (2) the alleged issuance of a false rules violation report in retaliation for Plaintiff 27 filing a grievance regarding the excessive force incident. (Id. at 5-7.) Hence, the claims against 1 be brought in the same suit. 2 As set forth above, Plaintiff does not state any cognizable claims against Wood or Zanchi. 3 The improper joinder of these defendants provides an alternative ground to dismiss them from 4 this action. Fed. R. Civ. P. 21 (“the court may at any time, on just terms, add or drop a party”). 5 V. CONCLUSION, RECOMMENDATION, AND ORDER 6 For the reasons set forth above, the Court finds that Plaintiff’s second amended complaint 7 states cognizable claims of excessive force against Defendants Algazzaly and Herrick and the 8 four Doe defendants, as well as a cognizable claim of retaliation against Defendant Gray; but it 9 does not state cognizable claims against the remaining defendants. Given that Plaintiff has 10 received two opportunities to amend (Docs. 7, 9), the Court finds that further amendment would 11 be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 12 Accordingly, the Court RECOMMENDS that: 13 1. Defendants Jhonson, Kernan, Nunley, Sullivan, Tingley, Wood, and Zanchi be 14 DISMISSED; and, 15 2. The claims in Plaintiff’s second amended complaint be DISMISSED, except for its 16 claims of excessive force in violation of the Eighth Amendment against Defendants 17 Algazzaly and Herrick and the four Doe defendants, and the claim of retaliation in 18 violation of the First Amendment against Defendant Gray, pursuant to 42 U.S.C. § 19 1983. 20 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 21 These Findings and Recommendations will be submitted to the United States District 22 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of 23 service of these Findings and Recommendations, Plaintiff may file written objections with the 24 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 25 Recommendations.” 26 /// 27 /// 1 Plaintiff’s failure to file objections within the specified time may result in waiver of his 2 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5

Sheila K. Oberto 6 Dated: May 7, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 7

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