1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO AMADOR GONZALEZ, No. 2:17-CV-0176-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action 18 pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s seventh amended 19 complaint, ECF No. 62. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 In Section I of the seventh amended complaint describing the parties, Plaintiff 10 refers to “[e]ach and every defendant,” but does not specifically name each defendant sued. See 11 ECF No. 62, pgs. 1-2. Throughout the seventh amended complaint, Plaintiff alleges various 12 claims against “all defendants” or against “named prison guards” and “named and unnamed 13 prison healthcare workers.” See generally id. 14 The only references to specific named individuals are in Section III of the seventh 15 amended complaint describing the “facts common to all claims.” Id. at 2-6. Plaintiff alleges:
16 13. The principle abusers in this case were Officer Burke, Officer Cross, Officer Valine, Office[r] Lewis, Lieutenant Bales, Captain 17 Clough, Office[r] Kinn, Office[r] Leech, Kevin Grinde, and Officer Spark. For his part, Dr. Bodenhamer withheld pertinent medical information from 18 Plaintiff that materially added to Plaintiff’s injuries and suffering. Dr. Bodenhamer, as a medical professional, had a duty to disclose all medical 19 information to Plaintiff, his patient.
20 Id. at 3. 21 Plaintiff then describes Defendants’ alleged conduct. According to Plaintiff, on 22 March 10, 2016, he notified his primary clinician, Dr. Ross, that he feared for his safety because 23 “he was aware that five officers at A-2 P.S.U. Sacramento were engaging in illegal beatings of 24 fellow inmates.” Id. Plaintiff claims that on April 12, 2016, Defendants Burke and Cross entered 25 Plaintiff’s cell to conduct a search. See id. Out of fear, Plaintiff requested that a supervisor in 26 charge or a lieutenant be present during the cell search. See id. Plaintiff asserts that, despite his 27 request, Defendant Cross refused to call a supervisor. See id. Plaintiff states that Defendant 28 Bales was the lieutenant on duty at the time and should have reprimanded the officers for the 1 actions. See id. 2 Plaintiff next claims that, seemingly displeased with Plaintiff’s request, Defendant 3 Cross gathered additional officers – Defendants Burke, Valine, and Lewis – and returned to 4 Plaintiff’s cell. See id. Plaintiff’s cell door was opened and Defendant Cross placed Plaintiff’s 5 left hand in handcuffs and “began to punch him in the left side of his body.” Id. at 3-4. Plaintiff 6 claims Defendant Cross then placed Plaintiff in a “full nelson” hold, thereby exposing Plaintiff’s 7 right side and back. Id. at 4. Plaintiff states that, at this point, Defendant Valine, Lewis, and 8 Burke “took turns kicking Plaintiff in the back and rib area of his body with their boots.” Id. 9 Plaintiff next alleges that the “torture and abuse then continued by Plaintiff being 10 dragged to the sink area where Officer Cross held Plaintiff in the position and then Officer Burke 11 ordered Officer J. Lewis. . . to pour urine and feces mixtures into his [Plaintiff’s] mouth.” Id. 12 Plaintiff claims that Defendant Lewis then kicked Plaintiff in his testicles. See id. Plaintiff was 13 taken to the medical facility where Defendant Grinde, a residential nurse, “ignored the physical 14 damage to the Plaintiff and played down the beating in a conspiratorial fashion and refused to 15 report the physical injuries to cover up of [sic] the Defendants, use of excessive force.” Id. at 5. 16 Plaintiff claims that, following this but prior to being returned to his cell, 17 Defendant Clough tied Plaintiff down on a gurney with sheets whereupon Defendants Kinn and 18 Leech “started hitting the restrained Plaintiff in the face without cause or justification.” Plaintiff 19 next claims that Defendant Walker – who is not listed in paragraph 13 outlined above – “was 20 pressing down on Plaintiff’s knee area inward in an apparent attempt to break his knee.” Id. 21 Plaintiff next alleges that, upon being returned to his cell, Defendant Byers – also 22 not listed in paragraph 13 – “grabbed Plaintiff under his jaw with both hands and began pulling 23 him upwards with great pressure, inflicting further unnecessary pain and suffering.” Id. 24 According to Plaintiff, Defendant Byers told Plaintiff “you’re getting everything you deserve.” 25 Plaintiff contends this statement was made in the presence of Defendant Clough, who did nothing 26 to intervene. See id. Plaintiff states that his injuries were compounded when, after being returned 27 to his cell, Defendant Lewis “squeezed Plaintiff’s testicles and hit him in the testicular area with a 28 metal detector. . . .” Id. Plaintiff adds that, at this point, Defendant Cross removed Plaintiff’s 1 handcuffs, sat him on the ground, and began punching Plaintiff in the face. See id. Plaintiff 2 states that Defendant Cross told Plaintiff “I’ve been waiting to fuck you up.” Id. 3 Plaintiff states he filed a “Sick Call Slip” seeking treatment for his injuries and 4 was provided an x-ray. See id. at 5-6. Plaintiff claims that Defendant Bodenhamer, a prison 5 doctor, confirmed a fracture of Plaintiff’s eighth rib, but withheld the fact that Plaintiff had also 6 fractured his back. See id. at 6. Plaintiff asserts this conduct indicates deliberate indifference. 7 See id. 8 Next, Plaintiff alleges that Defendant Spark (also referred to as “Sparks”) 9 interfered with Plaintiff’s right to file a complaint in connection with the foregoing. See id.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO AMADOR GONZALEZ, No. 2:17-CV-0176-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action 18 pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s seventh amended 19 complaint, ECF No. 62. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 In Section I of the seventh amended complaint describing the parties, Plaintiff 10 refers to “[e]ach and every defendant,” but does not specifically name each defendant sued. See 11 ECF No. 62, pgs. 1-2. Throughout the seventh amended complaint, Plaintiff alleges various 12 claims against “all defendants” or against “named prison guards” and “named and unnamed 13 prison healthcare workers.” See generally id. 14 The only references to specific named individuals are in Section III of the seventh 15 amended complaint describing the “facts common to all claims.” Id. at 2-6. Plaintiff alleges:
16 13. The principle abusers in this case were Officer Burke, Officer Cross, Officer Valine, Office[r] Lewis, Lieutenant Bales, Captain 17 Clough, Office[r] Kinn, Office[r] Leech, Kevin Grinde, and Officer Spark. For his part, Dr. Bodenhamer withheld pertinent medical information from 18 Plaintiff that materially added to Plaintiff’s injuries and suffering. Dr. Bodenhamer, as a medical professional, had a duty to disclose all medical 19 information to Plaintiff, his patient.
20 Id. at 3. 21 Plaintiff then describes Defendants’ alleged conduct. According to Plaintiff, on 22 March 10, 2016, he notified his primary clinician, Dr. Ross, that he feared for his safety because 23 “he was aware that five officers at A-2 P.S.U. Sacramento were engaging in illegal beatings of 24 fellow inmates.” Id. Plaintiff claims that on April 12, 2016, Defendants Burke and Cross entered 25 Plaintiff’s cell to conduct a search. See id. Out of fear, Plaintiff requested that a supervisor in 26 charge or a lieutenant be present during the cell search. See id. Plaintiff asserts that, despite his 27 request, Defendant Cross refused to call a supervisor. See id. Plaintiff states that Defendant 28 Bales was the lieutenant on duty at the time and should have reprimanded the officers for the 1 actions. See id. 2 Plaintiff next claims that, seemingly displeased with Plaintiff’s request, Defendant 3 Cross gathered additional officers – Defendants Burke, Valine, and Lewis – and returned to 4 Plaintiff’s cell. See id. Plaintiff’s cell door was opened and Defendant Cross placed Plaintiff’s 5 left hand in handcuffs and “began to punch him in the left side of his body.” Id. at 3-4. Plaintiff 6 claims Defendant Cross then placed Plaintiff in a “full nelson” hold, thereby exposing Plaintiff’s 7 right side and back. Id. at 4. Plaintiff states that, at this point, Defendant Valine, Lewis, and 8 Burke “took turns kicking Plaintiff in the back and rib area of his body with their boots.” Id. 9 Plaintiff next alleges that the “torture and abuse then continued by Plaintiff being 10 dragged to the sink area where Officer Cross held Plaintiff in the position and then Officer Burke 11 ordered Officer J. Lewis. . . to pour urine and feces mixtures into his [Plaintiff’s] mouth.” Id. 12 Plaintiff claims that Defendant Lewis then kicked Plaintiff in his testicles. See id. Plaintiff was 13 taken to the medical facility where Defendant Grinde, a residential nurse, “ignored the physical 14 damage to the Plaintiff and played down the beating in a conspiratorial fashion and refused to 15 report the physical injuries to cover up of [sic] the Defendants, use of excessive force.” Id. at 5. 16 Plaintiff claims that, following this but prior to being returned to his cell, 17 Defendant Clough tied Plaintiff down on a gurney with sheets whereupon Defendants Kinn and 18 Leech “started hitting the restrained Plaintiff in the face without cause or justification.” Plaintiff 19 next claims that Defendant Walker – who is not listed in paragraph 13 outlined above – “was 20 pressing down on Plaintiff’s knee area inward in an apparent attempt to break his knee.” Id. 21 Plaintiff next alleges that, upon being returned to his cell, Defendant Byers – also 22 not listed in paragraph 13 – “grabbed Plaintiff under his jaw with both hands and began pulling 23 him upwards with great pressure, inflicting further unnecessary pain and suffering.” Id. 24 According to Plaintiff, Defendant Byers told Plaintiff “you’re getting everything you deserve.” 25 Plaintiff contends this statement was made in the presence of Defendant Clough, who did nothing 26 to intervene. See id. Plaintiff states that his injuries were compounded when, after being returned 27 to his cell, Defendant Lewis “squeezed Plaintiff’s testicles and hit him in the testicular area with a 28 metal detector. . . .” Id. Plaintiff adds that, at this point, Defendant Cross removed Plaintiff’s 1 handcuffs, sat him on the ground, and began punching Plaintiff in the face. See id. Plaintiff 2 states that Defendant Cross told Plaintiff “I’ve been waiting to fuck you up.” Id. 3 Plaintiff states he filed a “Sick Call Slip” seeking treatment for his injuries and 4 was provided an x-ray. See id. at 5-6. Plaintiff claims that Defendant Bodenhamer, a prison 5 doctor, confirmed a fracture of Plaintiff’s eighth rib, but withheld the fact that Plaintiff had also 6 fractured his back. See id. at 6. Plaintiff asserts this conduct indicates deliberate indifference. 7 See id. 8 Next, Plaintiff alleges that Defendant Spark (also referred to as “Sparks”) 9 interfered with Plaintiff’s right to file a complaint in connection with the foregoing. See id. 10 According to Plaintiff, Defendant Spark threatened to charge him with a rules violation if Plaintiff 11 were to file a complaint. See id. 12 According to Plaintiff, the events alleged took place while he was incarcerated at 13 California State Prison – Sacramento. See ECF No. 1, pg. 4 (original complaint). 14 15 II. DISCUSSION 16 The following individuals are named and/or referenced in the seventh amended 17 complaint: (1) Burke, a Correctional Officer; (2) Cross, a Correctional Officer; (3) Valine, a 18 Correctional Officer; (4) Lewis, a Correctional Officer; (5) Bales, a Lieutenant; (6) Clough, a 19 Captain; (7) Kinn, a Correctional Officer; (8) Leech, a Correctional Officer; (9) Grinde; (10) 20 Spark, a Correctional Officer; (11) Walker, a Correctional Officer; (12) Byers, a Correctional 21 Officer; and (13) Bodenhamer, a prison doctor. Gavin Newsom is not mentioned in the complaint 22 aside from the caption. Based on the facts alleged, the Court finds that Plaintiff’s seventh 23 amended complaint states cognizable claims against the following 12 defendants: Burke, Cross, 24 Valine, Lewis, Clough, Kinn, Leech, Grinde, Walker, Byers, Bodenmaner, and Spark. 25 The Court finds, however, that Plaintiff fails to state a claim against Defendants 26 Newsom, Bales, Miner, Baughman, Kernan, Ross, or Stakes. Plaintiff also fails to state a claim 27 against the California Department of Corrections and Rehabilitation. 28 / / / 1 A. Newsom, Bales, Miner, Baughman, Kernan, Ross, and Stakes 2 Plaintiff names Defendant Newsom, the Governor of the State of California, in the 3 caption of the seventh amended complaint but does not reference this defendant elsewhere. 4 Defendant Bales is referenced only to the extent Plaintiff states Bales was the supervising 5 Correctional Lieutenant at the time of the April 12, 2016, cell search and had a duty to supervise 6 subordinate personnel. Other individuals – Miner, Baughman, Kernan, Ross, and Stakes – who 7 are listed on the Court’s docket as defendants, presumably because they were named in prior 8 amendments, are not mentioned in the seventh amended complaint whatsoever. 9 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 10 connection or link between the actions of the named defendants and the alleged deprivations. See 11 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 12 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 13 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 14 an act which he is legally required to do that causes the deprivation of which complaint is made.” 15 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 16 concerning the involvement of official personnel in civil rights violations are not sufficient. See 17 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 18 specific facts as to each individual defendant’s causal role in the alleged constitutional 19 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 20 Supervisory personnel are generally not liable under § 1983 for the actions of their 21 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 22 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 23 violations of subordinates if the supervisor participated in or directed the violations. See id. The 24 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 25 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 26 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 27 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 28 personnel who implement a policy so deficient that the policy itself is a repudiation of 1 constitutional rights and the moving force behind a constitutional violation may, however, be 2 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 3 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). When a defendant holds a 4 supervisory position, the causal link between such defendant and the claimed constitutional 5 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 6 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 7 Here, Plaintiff has, despite numerous attempts at amending the complaint and 8 despite being represented by counsel, failed to allege a causal connection between Defendants 9 Newsom, Bales, Miner, Baughman, Kernan, Ross, or Stakes and the constitutional violations 10 about which he complains. Newsom is not mentioned at all in the seventh amended complaint 11 outside the caption. Similarly, Miner, Baughman, Kernan, Ross, and Stakes are not mentioned at 12 all or listed in the caption. Plaintiff’s allegations that Bales is liable under a respondeat theory of 13 liability fails to state a cognizable claim. 14 Plaintiff will not be provided an additional opportunity to amend the complaint. 15 Defendants Newsom, Bales, Miner, Baughman, Kernan, Ross, and Stakes should be dismissed. 16 B. California Department of Corrections and Rehabilitation 17 The Eleventh Amendment prohibits federal courts from hearing suits brought 18 against a state both by its own citizens, as well as by citizens of other states. See Brooks v. 19 Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition 20 extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t 21 of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th 22 Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state 23 agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 24 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc). 25 Because the California Department of Corrections and Rehabilitation is immune 26 from suit, it should also be dismissed as a defendant to this action. 27 / / / 28 / / / 1 I. CONCLUSION 2 Because it does not appear possible that the deficiencies identified herein can be 3 | cured by amending the complaint, Plaintiff is not entitled to leave to amend prior to dismissal of 4 | Defendants Newsom, Bales, Miner, Baughman, Kernan, Ross, Stakes, and California Department 5 | of Corrections and Rehabilitation. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 6 | 2000) (en banc). 7 Based on the foregoing, the undersigned recommends that Newsom, Bales, Miner, 8 | Baughman, Kernan, Ross, Stakes, and California Department of Corrections and Rehabilitation 9 | be dismissed as defendants to this action. 10 These findings and recommendations are submitted to the United States District 11 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 12 | after being served with these findings and recommendations, any party may file written 13 | objections with the court. Responses to objections shall be filed within 14 days after service of 14 | objections. Failure to file objections within the specified time may waive the right to appeal. See 15 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 | Dated: November 5, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28