(PC) Hill v. Cross

• Court: District Court, E.D. California
• Decided: May 26, 2021
• Docket: 2:19-cv-01430
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HILL, No. 2:19-cv-1430 MCE AC P 12 Plaintiff, 13 v. ORDER 14 J. LYNCH, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. 18 § 1983 and state law. 19 I. Procedural History 20 This action was originally filed in the Sacramento County Superior Court. ECF No. 1 at 21 6-17. After defendants removed the case, id. at 1-4, plaintiff objected on the ground that his 22 allegations were based on violations of state law, ECF No. 5 at 1. Plaintiff was then given an 23 opportunity to amend the complaint to remove any federal claims and file a motion for remand, 24 ECF No. 6, which he did, ECF Nos. 8, 10. As a result, the undersigned recommended that the 25 motion to remand be granted and that this matter be remanded to state court. ECF No. 13. 26 Before the District Judge could rule on the findings and recommendations, plaintiff filed a second 27 amended complaint in which he revived his federal claims. ECF No. 15. The recommendation 28 that the motion to remand be granted was vacated, the motion to remand was denied, and the case 1 now proceeds on the second amended complaint. ECF No. 16. 2 II. Statutory Screening of Prisoner Complaints 3 The court is required to screen complaints in which a prisoner1 seeks relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 6 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 7 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 8 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 11 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 12 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 13 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 14 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 15 Franklin, 745 F.2d at 1227-28 (citations omitted). 16 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 17 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 18 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 19 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 20 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 21 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 22 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 23 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 24 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 25 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 26 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 27

28 1 Plaintiff was incarcerated at the time he filed the second amended complaint. 1 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint sets out four claims against defendants Lynch, Haise, Haynie, Cross, 14 Struve, Mohr, Ramirez, Ceja, Villasenor, Nichols, Davis, and Roswell for violating plaintiff’s 15 rights under the First and Eighth Amendments; article I, sections 2, 3, and 17 of the California 16 Constitution;2 and state tort law.3 ECF No. 15. Specifically, plaintiff alleges that on November 17 26, 2018, Ramirez told him that he was going out to court that day and needed to be ready for 18 escort to Receiving and Release (R&R) by 9:00 a.m. Id. at 10. At 8:30 a.m. Villasenor began 19 harassing plaintiff and complaining that he was taking too long, and when plaintiff was finally 20 ready, Villasenor continued complaining and threatened him by saying he would “make 21 [plaintiff’s] time hell.” Id. at 10-11. Struve overheard Villasenor’s comments and told him that 22 plaintiff had been told to be ready at 9:00 a.m., to which Villasenor responded that plaintiff “ain’t 23 got shit coming.” Id. Plaintiff proceeded to say that Villasenor was “acting like a little bitch,” 24 which prompted Struve to tell plaintiff not to talk about his partner like that. Id. When plaintiff

25 2 The Bane Act, Cal. Civ. Code § 52.1(c), which plaintiff also cites, provides a right of private 26 action for violations of the United States and California Constitutions. 3 Plaintiff appears to allege compliance with the Government Claims Act (ECF No. 15 at 9). See 27 State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240, 1237 (2004) (for claims against a public entity, timely presentation of a claim under the Government Claims Act is an element of the cause 28 of action and must be pled in the complaint). 1 repeated the statement, Struve pushed him against the yard door and again told plaintiff not to talk 2 about his partner like that. Id. When plaintiff further protested and told Struve he could say 3 whatever he wanted, Struve grabbed his jacket, swung him around, and slammed him on the 4 ground where he landed on his stomach and chest. Id. 5 After Struve took plaintiff to the ground, other officers began responding and Struve 6 handcuffed plaintiff with Ramirez’ assistance. Id. at 11-12. Plaintiff continued protesting, saying 7 that he had a right to free speech and had done nothing wrong, and one of the officers responding 8 put a mask over plaintiff’s face, making him fear he would be assaulted. Id. at 12. The 9 responding officers also placed leg chains on plaintiff’s ankles as he continued protesting the 10 mask. Id. at 12. While plaintiff was being restrained, Haynie told him the mask was to prevent 11 him from getting bodily fluids on the officers, that he knew about plaintiff filing lawsuits, and 12 that he could file a lawsuit about what was happening. Id. at 12-13. Plaintiff was then lifted off 13 the ground and put on a gurney, and as he was rolled out of the building by Ceja, Mohr, Cross, 14 and Roswell, his leg was rammed into the door, causing a deep gouge. Id. at 13. One of the 15 defendants then laughed and told him he “better make sure nothing else gets smashed.” Id. Upon 16 arrival at medical, Cross told staff that plaintiff was refusing medical treatment even though he 17 had not refused. Id. 18 At some point, Mohr and Cross called plaintiff to R&R where Nichols re-cuffed plaintiff 19 too tightly behind his back and locked him in a holding cage. Id. at 14. Plaintiff told Mohr and 20 Cross that the cuffs were too tight, but Cross told him it was not their problem. Id. Plaintiff was 21 left in the holding cage for four hours during which time the R&R staff, who are not listed as 22 defendants, ignored his requests to loosen the handcuffs and use the restroom, causing plaintiff 23 pain in his shoulders, to urinate in his pants twice, and to begin experiencing thoughts of self- 24 harm. Id. In response to plaintiff’s reported desire to self-harm, Davis evaluated plaintiff but 25 failed to offer any intervention even after he explained that his depression and post-traumatic 26 stress disorder where being exacerbated by the conditions and the recent discontinuation of his 27 medication. Id. at 14-15. 28 //// 1 IV. Supervisory Defendants 2 “There is no respondeat superior liability under section 1983,” Taylor v List, 880 F.2d 3 1040, 1045 (9th Cir. 1989) (citation omitted), and the complaint does not contain any facts 4 showing that defendants Lynch and Haise were personally involved in any of the alleged 5 violations and failed to intervene. Instead, plaintiff alleges that they “ratified” the actions of the 6 other defendants when they conducted an inadequate investigation and found that defendants did 7 not violate policy. ECF No. 15 at 17. This is not sufficient to state a claim for relief. See Starr v. 8 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (supervisor can be liable for his personal involvement 9 or if there is a sufficient causal connection between supervisor’s conduct and violation); Cal. 10 Gov’t Code § 820.8 (public employee not liable for injury caused by conduct of another person). 11 V. Excessive Force and Failure to Intervene 12 Plaintiff’s first claim alleges that Haynie, Cross, Struve, Mohr, Ramirez, Ceja, Villasenor, 13 Nichols, Heise, Lynch, and Roswell subjected him to excessive force in violation of the Eighth 14 Amendment and article 1, section 17 of the California Constitution. ECF No. 15 at 18. The 15 allegation that defendants Ceja, Mohr, Cross, and Roswell deliberately rammed plaintiff’s leg into 16 the door and injured it is sufficient to state a claim for excessive force. See Hudson v. McMillian, 17 503 U.S. 1, 6-7 (1992) (force is excessive if used “maliciously and sadistically to cause harm” 18 (citation omitted)); Inmates of the Riverside Cnty. Jail v. Clark, 144 Cal. App. 3d 850, 859 (1983) 19 (“California courts have consistently employed federal decisions in assessing charges of unlawful 20 conditions of confinement.” (citations omitted)). Plaintiff has also stated a claim for failure to 21 protect against Cross and Mohr for failing to adjust his handcuffs after he advised them that they 22 were too tight. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (Eighth Amendment violated 23 where prison official is deliberately indifferent to serious risk of harm). However, though 24 plaintiff alleges that Struve slammed him on the ground, it is not clear that the force was 25 excessive because plaintiff does not identify any injuries that he suffered as a result of the use of 26 force, nor does he allege any injuries from Struve and Ramirez applying handcuffs. Similarly, 27 though plaintiff claims the leg irons and mask were unnecessary, he fails to identify any injuries 28 he suffered from them or facts demonstrating an intent to cause harm. He also fails to allege any 1 facts showing that Nichols deliberately cuffed him too tightly upon his arrival at R&R, and there 2 are no allegations that Haynie, Villasenor, Heise, or Lynch used any force against plaintiff. 3 VI. Freedom of Speech, Access to the Courts, and Retaliation 4 Claim Two alleges that Haynie, Cross, Struve, Mohr, Ramirez, Ceja, Villasenor, Nichols, 5 Heise, Lynch, and Roswell retaliated against plaintiff for exercising his right to speak freely and 6 petition the court, violating the First Amendment and article 1, sections 2(a) and 3(a) of the 7 California constitution. ECF No. 15 at 18. Plaintiff’s allegations are insufficient to show that any 8 defendant’s conduct was retaliatory or violated his rights to free speech or to access the courts. 9 Plaintiff’s name-calling of defendant Villasenor does not constitute protected conduct or speech. 10 See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (retaliation claim must include 11 allegation that defendant took adverse action against plaintiff because of his protected conduct 12 and that the action chilled plaintiff’s exercise of First Amendment rights and lacked legitimate 13 correctional goal); Gordon v. Gaeta, No. 1:18-cv-1572 LJO EPG P, 2019 WL 1572529, at *3, 14 2019 U.S. Dist. LEXIS 62815, at *5-6 (E.D. Cal. Apr. 11, 2019) (“confrontational, disrespectful, 15 and argumentative” conduct by prisoner not protected by First Amendment (collecting cases)). 16 Additionally, while plaintiff alleges that Haynie was aware of his lawsuits, there are no facts 17 showing that any defendant’s conduct was motivated by the pending litigation or that his ability 18 to access the courts was interfered with in any way. 19 VII. Deliberate Indifference to Serious Medical Need 20 The third claim alleges that Haynie, Cross, Struve, Mohr, Ramirez, Ceja, Villasenor, 21 Nichols, Heise, Lynch, Roswell, and Davis were deliberately indifferent to plaintiff’s mental 22 health disorders in violation of the Eighth Amendment and article 1, section 17 of the California 23 Constitution. ECF No. 15 at 18. Plaintiff has failed to allege deliberate indifference to a serious 24 medical need against any defendant except Davis. Davis’ alleged failure to take any action to 25 address plaintiff’s conditions is sufficient to state a claim for deliberate indifference to plaintiff’s 26 serious medical need, see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (deliberate 27 indifference shown by a purposeful act or failure to respond to plaintiff’s pain or medical need 28 and harm cause by indifference). However, there are no allegations against any other defendants 1 that would demonstrate they were aware of plaintiff’s mental health needs and ignored them. The 2 allegation that Cross denied him medical treatment by saying that plaintiff refused treatment also 3 fails to state a claim because there are no facts showing that plaintiff had a serious medical need 4 at the time, was denied medical care, and suffered an injury as a result. 5 VIII. Assault and Battery 6 Plaintiff’s final claim alleges that the conduct of Haynie, Cross, Struve, Mohr, Ramirez, 7 Ceja, Villasenor, Nichols, Heise, Lynch, and Roswell constituted assault and battery. ECF No. 15 8 at 18. For the same reasons that plaintiff has stated a claim for excessive force against defendants 9 Ceja, Mohr, Cross, and Roswell, he also states claims for assault and battery against these 10 defendants. See So v. Shin, 212 Cal. App. 4th 652, 668-69 (2013) (setting out elements for 11 causes of action for assault and battery). However, plaintiff fails to state claims for assault and 12 battery against any other defendant because he has not demonstrated that any other defendant 13 acted with an intent to cause him harm or offense, and that he also suffered harm or offense as a 14 result of their conduct. Id. (elements of assault include “intent to cause harmful or offensive 15 contact” and harm to plaintiff as a result of defendant’s conduct; elements of battery include 16 “intent to harm or offend plaintiff” and harm or offense caused by defendant’s conduct). 17 IX. Leave to Amend 18 For the reasons set forth above, the court finds that the second amended complaint does 19 not state any cognizable claims against defendants Haynie, Struve, Ramirez, Villasenor, Nichols, 20 Heise, and Lynch or against any defendant for the violation of plaintiff’s rights to free speech or 21 access to the courts. The amended complaint also fails to state claims for deliberate indifference 22 to a serious medical need against Ceja, Mohr, Cross, and Roswell. However, it appears that 23 plaintiff may be able to allege facts to remedy this and he will be given the opportunity to amend 24 the complaint if he desires. 25 Plaintiff may proceed forthwith to serve defendants Ceja, Mohr, Cross, and Roswell on 26 his excessive force, assault, and battery claims; Cross and Mohr on his failure to protect claim; 27 and Davis on his deliberate indifference claim. Alternatively, he may delay serving any 28 defendant and amend the complaint. 1 Plaintiff will be required to complete and return the attached notice advising the court how 2 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 3 file a third amended complaint. If plaintiff elects to proceed on his claims against defendants 4 Ceja, Mohr, Cross, Roswell, and Davis without amending the complaint, the court will proceed to 5 serve the second amended complaint. A decision to go forward without amending the complaint 6 will be considered a voluntarily dismissal without prejudice of the deliberate indifference claims 7 against Ceja, Mohr, Cross, and Roswell; all claims against defendants Haynie, Struve, Ramirez, 8 Villasenor, Nichols, Heise, and Lynch; and the claims for the violation of plaintiff’s rights to free 9 speech or access to the courts against any defendant. 10 If plaintiff chooses to file a third amended complaint, he must demonstrate how the 11 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 12 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 13 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 14 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 15 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 16 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 17 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982) (citations omitted). 19 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 20 his amended complaint complete. Local Rule 220 requires that an amended complaint be 21 complete in itself without reference to any prior pleading. This is because, as a general rule, an 22 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 23 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 24 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 25 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 26 the original and any previous amended complaints no longer serve any function in the case. 27 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 28 of each defendant must be sufficiently alleged. 1 X. Plain Language Summary of this Order for a Pro Se Litigant 2 Some of the allegations in the complaint state claims against the defendants and some do 3 not. You have stated claims for relief against defendants Ceja, Mohr, Cross, and Roswell for 4 excessive force, assault, and battery; Cross and Mohr for failure to protect; and Davis for 5 deliberate indifference. You have not alleged enough facts to state claims for deliberate 6 indifference against Ceja, Mohr, Cross, and Roswell; any claims against defendants Haynie, 7 Struve, Ramirez, Villasenor, Nichols, Heise, and Lynch; or claims for the violation of your rights 8 to free speech or access to the courts against any defendant. 9 You have a choice to make. You may either (1) proceed immediately on your excessive 10 force, assault, and battery claims against Ceja, Mohr, Cross, and Rosswell; failure to protect claim 11 against Cross and Mohr; and deliberate indifference claim against Davis and voluntarily dismiss 12 the other claims and defendants, or (2) try to amend the complaint. If you want to go forward 13 without amending the complaint, you will be voluntarily dismissing without prejudice all other 14 claims and defendants. If you choose to amend your complaint, the amended complaint must 15 include all of the claims you want to make, including the ones that have already been found to 16 state a claim, because the court will not look at the claims or information in the original or 17 previous amended complaints. Any claims and information not in the amended complaint 18 will not be considered. You must complete the attached notification showing what you want to 19 do and return it to the court. Once the court receives the notice, it will issue an order telling you 20 what you need to do next (i.e. file an amended complaint or wait for defendants to be served). 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. The amended complaint does not state any cognizable claims against defendants 23 Haynie, Struve, Ramirez, Villasenor, Nichols, Heise, and Lynch or against any defendant for the 24 violation of plaintiff’s rights to free speech or access to the courts. The amended complaint also 25 fails to state claims for deliberate indifference to a serious medical need against Ceja, Mohr, 26 Cross, and Roswell. 27 2. Plaintiff has the option to proceed immediately on his excessive force, assault, and 28 battery claims against Ceja, Mohr, Cross, and Rosswell; failure to protect claim against Cross and 1 | Mohr; and deliberate indifference claim against Davis as set forth above, or to amend the 2 || complaint. 3 3. Within fourteen days of service of this order, plaintiff shall complete and return the 4 || attached form notifying the court whether he wants to proceed on the screened complaint or 5 || whether he wants to file a third amended complaint. If plaintiff does not return the form, the 6 || court will assume that he is choosing to proceed on the complaint as screened and will 7 || recommend dismissal without prejudice of all claims against defendants Haynie, Struve, Ramirez, 8 || Villasenor, Nichols, Heise, and Lynch; of the claims for the violation of plaintiffs rights to free 9 || speech or access to the courts; and the claims for deliberate indifference to a serious medical need 10 || against Ceya, Mohr, Cross, and Roswell. 11 | DATED: May 26, 2021 . 12 Ctlhter— Lane 13 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH HILL, No. 2:19-cv-1430 MCE AC P 11 Plaintiff, 12 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 13 J. LYNCH, et al., 14 Defendants. 15 16 Check one: 17 _____ Plaintiff wants to proceed immediately on his excessive force, assault, and battery claims 18 against Ceja, Mohr, Cross, and Rosswell; failure to protect claim against Cross and Mohr; 19 and deliberate indifference claim against Davis without amending the complaint. Plaintiff 20 understands that by going forward without amending the complaint he is voluntarily 21 dismissing without prejudice all other claims and defendants pursuant to Federal Rule of 22 Civil Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________

27 Kenneth Hill Plaintiff pro se 28