(PC) Mills v. Clarke

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL RAY MILLS, Case No. 1:20-cv-00498-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO PERMIT PLAINTIFF TO PROCEED ON 14 KEN CLARKE, et al., COGNIZABLE CLAIMS AND DISMISS REMAINING CLAIMS AND DEFENDANTS1 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 27) 17 18 Plaintiff Darryl Ray Mills is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights complaint under 42 U.S.C. § 1983. Plaintiff proceeds on his First Amended 20 Complaint. (Doc. No. 21, “FAC”). As more fully set forth below, the undersigned finds the FAC 21 states a cognizable Eighth Amendment excessive force claim against Defendants J. Navaro, I. 22 Medina, O. Rodriguez, and A. Nunez, and two Eighth Amendment deliberate medical 23 indifference claims against Defendant C. Lewis and recommends that Plaintiff be allowed to 24 proceed only on these claims. As to Plaintiff’s remaining claims, the undersigned finds the FAC 25 may state a claim as to certain causes of action, but they are improperly joined under Rules 18 26 and 20, while others fail to state a claim. Therefore, the undersigned recommends the remaining 27 1 The undersigned submits these factual findings and recommendations to the District Court pursuant to 28 28 U.S.C. §636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 1 claims and defendants be dismissed without prejudice. 2 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING 3 A. Procedural History 4 The former assigned magistrate judge found Plaintiff’s initial complaint did not state a 5 claim but permitted Plaintiff to file an amended complaint. (Doc. No. 8). Plaintiff filed a first 6 amended complaint (Doc. No. 21, “FAC”) and the undersigned found the FAC stated a 7 cognizable Eighth Amendment excessive force claim against Defendants J. Navaro, I. Medina, O. 8 Rodriguez, and A. Nunez, and an Eighth Amendment deliberate medical indifference claim 9 against Defendant C. Lewis, but no other claims. (Doc. No. 26). The Court directed Plaintiff to 10 file a notice to voluntarily dismiss the Defendants and other claims deemed not cognizable or 11 stand on his FAC subject to the undersigned issuing a findings and recommendation to dismiss 12 the Defendants and other claims considered not cognizable. (Id. at 6). Plaintiff filed a notice that 13 he “stands on ‘all’ claims in complaint(s) as well including the courts deemed cognizable claims 14 not dismissing any claims nor defendants period . . . .” (Doc. No. 27 at 1). The undersigned 15 construes this as a notice that Plaintiff intends to stand on his FAC subject to the undersigned 16 recommending dismissal of those claims and defendants deemed not cognizable. 17 B. Summary of Operative Pleading 18 Plaintiff’s initial complaint contained numerous allegations against 54 defendants. (See 19 generally Doc. No. 1). Plaintiff’s FAC focuses on a narrower set of claims and defendants than 20 his initial complaint, but still names 23 defendants and pertains to seven separate incidents over a 21 nine-month period.2 (See generally Doc. No. 21). The claims in the FAC are not presented in 22 chronological order, and related claims are found within different sections of the FAC. In the 23 interest of clarity, therefore, the Court examines the claims chronologically, while noting the 24 number of the corresponding claim(s) in parentheses.3 Plaintiff alleges the following facts in 25 2 Plaintiff improperly tries to incorporate the original complaint. See Doc. No. 21 at 3 (stating “See 26 attached Amended Civil Rights Complaint and 1st Complaint”). The Court advised Plaintiff in its first screening order, per Local Rule 220, “the amended complaint must be complete on its face without 27 reference to the prior pleading . . . [o]nce an amended complaint is filed, the original complaint no longer serves any function.” (Doc. No. 8 at 3-4). 28 3 The Court refers to the claim numbers ascribed by Plaintiff to the incidents and uses the pages numbers 1 support of his various claims: 2 On May 14, 2019 (Claim 1), “after refusing to go outside for what was called ‘a movie- 3 cleanup [,]’” Plaintiff was placed in handcuffs by Sergeant J. Navaro so tightly “that it stopped 4 circulation from flowing.” (Id. at 3.) He states that other “involved correctional officers” were I. 5 Medina, O. Rodriguez, A. Nunez, and “other officers . . . which Plaintiff only know [sic] by last 6 name.” (Id.) These officers all escorted Plaintiff to a cage where he was made to wait for 45 7 minutes to 1 hour. (Id.). He told Defendants that the handcuffs were too tight, but “they refused 8 to loosing [sic] or take handcuffs off as Plaintiff was already secured in the cage.” (Id. at 3-4). 9 Plaintiff states that as a result, he suffered “permanent damage to [his] right hand . . . .” (Id. at 4). 10 On the same day (Claim 4), “Psych Technician” Carrie Lewis “delayed and denied care” 11 after Plaintiff complained of injury from the overly tight handcuffs and did not provide medical 12 care until the next day. (Id. at 5D). She “had taken a look at [Plaintiff’s injuries] but failed to 13 provide medical attention and get hand cuff’s [sic] removed.” (Id. at 5D). Defendant Lewis “also 14 fabricated a false report to cover-up her violating Plaintiff’s civil rights.” (Id.). 15 On August 31, 2019 (Claim 2), Plaintiff was again placed in handcuffs and escorted to the 16 showers by Correctional Officers J. Higuera and N. Limon. (Id. at 4). When he reached the 17 bottom of the stairs, Plaintiff “was tripped while being slammed to the ground and immidiately 18 [sic] assaulted by” Correctional Officers N. Vera, N. Limon, and J. Higuera. (Id.). Plaintiff states 19 that Correctional Officer S. Limon was working the control tower and failed to stop the assault. 20 (Id.). Responding Officer R. Ayala (who is not named as a defendant) “denied as well as delayed 21 Plaintiff immediate medical attention.” (Id.). Plaintiff states Psych technician C. Lewis again 22 “refused to get attention that was needed” to Plaintiff’s injuries, which included a “black eye . . . 23 bruising around face & head, slice on right arm, cuts & bruising on both ankles . . . . . (Id. at 5). 24 Registered Nurse J. Jecrois (who is also not a named defendant) “failed to also get Plaintiff 25 immidiate [sic] medical attention.” (Id.). Plaintiff was transported to an outside hospital the next 26 day. He states that “all mentioned defendants fabricated reports to conceal . . . their violating 27

28 on the FAC as opposed to the page numbers that appear on the Court’s CM/ECF system. 1 Plaintiff’s civil rights.” (Id.). 2 On September 2, 2019 (Claim 5), Correctional Sergeant J. Barnes, who was responsible 3 for interviewing Plaintiff regarding the alleged August 31, 2019 assault, approached Plaintiff’s 4 cell while he was using the restroom and began calling Plaintiff “a bitch.” (Id. at 5E). Sergeant J. 5 Navaro joined in the taunting. (Id.) Plaintiff was then taken to a small office to be interviewed. 6 Sergeant J. Barnes continued taunting Plaintiff, calling him a “bitch”, and trying to provoke 7 Plaintiff to violence. (Id.). 8 On October 27, 2019 (Claim 6), Correctional Lieutenant M. Maine found Plaintiff guilty 9 of battery on a peace officer. (Id. at 5G). Plaintiff states this was a false charge used to cover up 10 for an unspecified earlier assault by correctional officers. (Id.). He states his due process rights 11 were violated because he was denied the opportunity to have witnesses present at his grievance 12 hearing. (Id.). 13 On December 10, 2019 (Claim 6), Lieutenant A. Randolph conspired to find Plaintiff 14 guilty of a rule violation relating to his receipt of a package from his mother, which was 15 “donated” without Plaintiff’s consent. (Id.). Plaintiff states that “false charges” were brought 16 against him to cover up the wrongful seizure of his property. (Id.). 17 On January 2, 2020 (Claim 3), Correctional Officer E. Cerda-Tirano escorted Plaintiff 18 while in handcuffs to the shower. (Id. at 5B). He ordered Plaintiff to face the wall and began 19 yelling at him. (Id.). Plaintiff was “slammed then jumped on by both Correctional Officer E. 20 Cerda-Tirano & Correctional Officer E. Cruiel both punching Plaintiff . . . in the face, eye, nose, 21 head.” (Id.). Plaintiff states he was pinned down by Defendants and a spit mask was placed over 22 his face while Correctional Officer N. Limon punched him in the face causing blood to splatter 23 inside the mask. (Id.). Plaintiff states Correctional Officer H. Flores was working the control 24 tower, where he witnessed the assault and failed to intervene. (Id. at 5C). 25 In the same incident, various other prison officials failed to prevent harm to Plaintiff. Sgt. 26 Markin “failed to assist this Plaintiff” in seeking redress for the alleged assault and instead 27 “taunted” Plaintiff after he reported the incident to Markin and responding officers. (Id. at 5B). 28 Lieutenant K. Cruz failed to intervene when other correctional officers taunted Plaintiff by 1 pulling the spit mask back and forth over his head while he was being evaluated by medical staff. 2 (Id. at 5C). “Sgt. Bararona [sic]” the supervising sergeant at the time of the assault, “both failed 3 to supervise and intervene.” (Id. at 5C). Investigative Service Unit Officer C. Musselman “failed 4 to investigate Plaintiff’s complaints as well [sic] notify Ken Clarke (Warden) of my request of 5 wanting to file charges.” (Id.). Finally, all Defendants “fabricated reports” to conceal the assault 6 on Plaintiff. (Id.). 7 On February 4, 2020 (Claim 5), Correctional Officers O. Valladolid and R. Gamboa 8 assaulted Plaintiff in the shower “for filing complaints, grievances, & doing interviews on what 9 has been taking place.” (Id.). Plaintiff states that Defendant Gamboa “lifted [him] in the air [and] 10 dropp’d [sic] [him] while O. Valladolid pressed down on Plaintiff’s face” and screamed threats at 11 him. (Id. at 5E-5F). Defendants R. Gamboa and G. Torres stood and watched. (Id. at 5F). 12 Plaintiff was medically evaluated and then taken back to his cell in handcuffs and leg restraints by 13 Sergeant K. Green and CO’s N. Limon, O. Valladolid, R. Gamboa, and G. Torres. (Id.). 14 “Plaintiff was then kicked in the back by Correctional Officer O. Valladolid which caused 15 Plaintiff to fall face first inside cell.” (Id.). Plaintiff “could not breath [sic] due to pain and being 16 kicked in the back” and he was denied a medical evaluation. (Id.). 17 Relief Requested 18 As relief, Plaintiff seeks “money damages . . . of physical; emotional; and psychological 19 injunctive relief[;]” criminal charges filed against Defendants; access to all evidence involved in 20 Plaintiff’s FAC, including videos and photos; appointment of counsel; release from segregation; 21 “for plaintiff’s U.S. constitutional rights to be implemented [,]” and “any and all relief the Court 22 deems necessary.” (Id. at 3). 23 ANALYSIS AND APPLICABLE LAW 24 As set forth more fully below, the undersigned finds that Plaintiff’s FAC states a 25 cognizable claim as to certain incidents and defendants, may state a claim as to others that cannot 26 proceed in this action because they are improperly joined under Rules 18 and 20, and fails to state 27 a claim as to other claims and Defendants. 28 //// 1 A. Federal Rules of Civil Procedure 8, 18, and 20 2 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 3 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 5 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 6 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 8 at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 9 Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. 10 A plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 11 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 12 507 F.3d 605, 607 (7th Cir. 2007). A plaintiff may bring a claim against multiple defendants so 13 long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and 14 occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); 15 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement 16 refers to similarity in the factual background of a claim. Coughlin, 130 F.3d at 1349. Only if the 17 defendants are properly joined under Rule 20(a) will the Court review the other claims to 18 determine if they may be joined under Rule 18(a), which permits the joinder of multiple claims 19 against the same party. The fact that some of Plaintiff’s allegations are based on the same type of 20 constitutional violation (i.e., excessive force by different actors on different dates, under different 21 factual events) does not necessarily make the claims related for purposes of Rule 18(a). Claims 22 are related where they are based on the same precipitating event, or a series of related events 23 caused by the same precipitating event. 24 B. May 14, 2019 Incidents 25 1. Excessive Force (Claim 1) 26 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 27 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 28 452 U.S. 337, 347 (1981). The inquiry as to whether a prison official’s use of force constitutes 1 cruel and unusual punishment is “whether force was applied in a good-faith effort to maintain or 2 restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 3 1, 6–7 (1992); Whitley v. Albers, 475 U.S. 312, 320 (1986). 4 “The objective component of an Eighth Amendment claim is . . . contextual and 5 responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8 (internal quotation 6 marks and citations omitted). A prison official’s use of force when done maliciously and 7 sadistically to cause harm violates the contemporary standards of decency. Wilkins v. Gaddy, 559 8 U.S. 34, 37, (2010). However, “[n]ot ‘every malevolent touch by a prison guard gives rise to a 9 federal cause of action.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9). Factors that 10 can be considered are “the need for the application of force, the relationship between the need and 11 the amount of force that was used, [and] the extent of injury inflicted.” Whitley, 475 U.S. at 321; 12 Marquez v. Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003). 13 Whether tight handcuffs can constitute excessive force is fact-specific, however the Ninth 14 Circuit has “found a triable issue when the handcuffs caused demonstrable injury or unnecessary 15 pain, or when officers ignored or refused requests to loosen the handcuffs once alerted that 16 the handcuffs were too tight.” James v. Lee, 485 F. Supp. 3d 1241, 1255 (S.D. Cal. 2020) 17 (citing Stevenson v. Jones, 254 F. Supp. 3d 1080, 1091–92 (N.D. Cal. 2017) (collecting 18 cases); Smith v. Sergent, 2017 WL 4284659, at *5–6 (E.D. Cal. Sept. 27, 2017) (collecting cases); 19 see Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) (Court found excessive force where 20 officers refused to loosen tight handcuffs, which caused Plaintiff to seek medical attention “for 21 bruises on her wrist and under her upper arm, and she complained of pain in her little finger and 22 upper arm.”); see also Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (finding excessive 23 force when officer refused to loosen tight handcuffs, which resulted in pain and bruises to 24 Plaintiff’s wrists that lasted several weeks.) 25 The undersigned finds that Plaintiff states a cognizable excessive force claim against 26 Defendants J. Navaro, I. Medina, O. Rodriguez, and A. Nunez. Liberally construing the FAC, 27 Plaintiff alleges that Defendant Navaro placed handcuffs on him so tightly as to cause pain and 28 lasting injury, and that all Defendants refused to loosen them after being advised that Plaintiff 1 was in pain and he exhibited physical symptoms that the handcuffs were too tight, including 2 discoloration of his skin. (Doc. No. 21 at 3-4). While Plaintiff does not specify the nature of his 3 “permanent injury” he alleges that he lost circulation in his wrists for 45 minutes to 1 hour and 4 suffered pain and discoloration in his right hand/arm from the tight handcuffs. (Doc. No. 21 at 3- 5 4). This is sufficient to survive the “low threshold” for sua sponte screening pursuant to 28 6 U.S.C. Sections 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 7 2012). 8 As to those officers Plaintiff does not know, the undersigned finds that the FAC fails to 9 state a claim. (Doc. No. 21 at 3). While “situations may arise where the identity of alleged 10 defendants cannot be known prior to the filing of a complaint,” Gillespie v. Civiletti, 629 F.2d 11 637, 642 (9th Cir. 1980), Plaintiff must plead sufficient factual detail to allow the court to 12 reasonably infer that each Defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. 13 Plaintiff here fails to do so. Plaintiff provides no information from which one could later discern 14 the identity of the three unnamed individuals. Where “it is clear that discovery would not 15 uncover the identities, or that the complaint would be dismissed on other grounds,” Plaintiff 16 should not be permitted to proceed with a suit against Doe defendants. Gillespie, 629 F.2d at 642. 17 Thus, the Court finds Plaintiff states a cognizable Eighth Amendment Claim only as to J. Navaro, 18 I. Medina, O. Rodriguez, and A. Nunez in Claim 1. 19 2. Deliberate Medical Indifference (Claim 4) 20 Deliberate indifference to the serious medical needs of an incarcerated person constitutes 21 cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 22 U.S. 97, 104 (1976). A finding of “deliberate indifference” involves an examination of the 23 seriousness of the plaintiff’s medical need (determined objectively) and the nature of the 24 defendant’s response (determined by defendant’s subjective state of mind). See McGuckin v. 25 Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds, WMX Technologies, Inc. 26 v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). On the objective prong, a “serious” 27 medical need exists if the failure to treat “could result in further significant injury” or the 28 “unnecessary and wanton infliction of pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 1 2014); see also Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). On the subjective 2 prong, a prison official must know of and disregard a serious risk of harm. Farmer, 511 U.S. at 3 837. Such indifference may appear when a prison official intentionally denies or delays care, or 4 intentionally interferes with treatment once prescribed. Estelle, 429 U.S. at 104-05. 5 A delay in treatment, without more, is likewise insufficient to state a claim. Shapley v. 6 Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). A plaintiff must also 7 demonstrate harm from the official’s conduct. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 8 2006). And the defendant’s actions must have been both an actual and proximate cause of this 9 harm. Lemire, 726 F.3d at 1074. 10 Liberally construing the FAC, as this stage of the proceedings, Plaintiff states a cognizable 11 claim of deliberate medical indifference as to the May 14, 2019 incident. He states Defendant 12 Lewis saw him when he was suffering from pain, numbness, and discoloration, and despite the 13 examination, Lewis “failed to provide medical attention and get handcuff’s [sic] removed” and 14 did not provide Plaintiff with any medical care until the next day. (Doc. No. 21 at 5D). As a 15 result, Plaintiff suffered pain for 45 minutes to 1 hour and claims to have “permanent damage” to 16 his right hand/arm due to the delay. (Id.). 17 Plaintiff’s allegations satisfy both prongs of the Eighth Amendment test, sufficient to meet 18 the low threshold of sua sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 19 1915A(b). See Wilhelm, 680 F.3d at 1123. Defendant Lewis’s failure to provide any aid to 20 Plaintiff resulted in “unnecessary and wanton infliction of pain [,]” and lasting injury to Plaintiff’s 21 right hand and arm, which satisfies the objective prong. Colwell v. Bannister, 763 F.3d 1060, 22 1066 (9th Cir. 2014). Defendant Lewis’s knowledge of the pain and injury being suffered by 23 Plaintiff—she had examined him in the course of the incident—and deliberate decision not to 24 treat him satisfies the subjective prong. See Estelle, 429 U.S. at 104-05. 25 //// 26 //// 27 //// 28 //// 1 C. August 31 –September 2, 2019 Incidents 2 1. Excessive Force (Claim 2) 3 Plaintiff states, on August 31, 2019, he was escorted to the shower and “tripped while 4 being slammed to the ground and immidiately [sic] assaulted by (3) of the correctional officers N. 5 Vera, N. Limon, and J. Higuera, which were both malicious & sadistic.” (Doc. No. 21 at 4). 6 Plaintiff’s allegation that these three Correctional Officers “assaulted” him, without 7 further detail, is too vague, conclusory, and “devoid of . . . ‘factual enhancement’ “to permit the 8 Court “to draw the reasonable inference” that these Defendants engaged in the alleged assault. 9 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Nor is the Court required to accept as 10 true legal conclusions, such as Plaintiff’s claim that Defendants were “malicious & sadistic.” Id.; 11 see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. Accordingly, Plaintiff fails to 12 state a cognizable excessive force claim as to this incident. 13 This claim is also misjoined because it occurred more than three months after the incident 14 described in Claim 1 and involves an entirely different set of defendants than those implicated in 15 Claim 1. Besides the fact that both incidents took place in prison and involve the same 16 constitutional deprivation, Claim 1 and Claim 2 do not share a similarity of factual background 17 that would warrant joining them in a single action, therefore Claim 2 is improperly joined under 18 Rules 18 and 20. Coughlin, 130 F.3d at 1349; see also Mosier v. Cal. Dep’t of Corr. & Rehab., 19 2012 WL 2577524, at *2 (E.D. Cal. Jul. 2, 2012) (“The fact that claims are premised on the same 20 type of constitutional violation(s) … against multiple defendants does not make them factually 21 related.”). 22 2. Deliberate Medical Indifference (Claim 4) 23 Plaintiff asserts a second claim of deliberate medical indifference as to psychiatric 24 technician Carrie Lewis, based on her failure to treat him after the use of force incident on August 25 31, 2019.4 The undersigned finds that although, as noted supra, the claim arising from the 26 4 The Court notes the reference to the claim as occurring on “September 31, 2019” to be in error and 27 liberally construes the claim as arising from the use of force incident August 31, 2019 since the facts described in both claims are virtually the same. (Doc. No. 21 at 4-5, 5D). See Bernhardt v. L.A. County, 28 339 F.3d 920, 925 (9th Cir. 2003) (noting that “the court must construe the pleadings liberally and must 1 August 31, 2019 use of force incident is misjoined and fails to state a claim, the FAC states a 2 deliberate medical indifference claim as to Defendant Lewis arising out of the same incident 3 because it is pled in significantly greater detail. And, because Defendant Lewis is named in both 4 Claims 1 and 4 under the same cause of action (deliberate medical indifference), the two are 5 properly joined in the same suit. Fed. R. Civ. P. 18. 6 Somewhat confusingly, Plaintiff alleges facts pertaining to Defendant Lewis’ actions on 7 August 31, 2019 in two different claims (Claim 2 and Claim 4). The Court therefore incorporates 8 the facts alleged in both Claims 2 and 4 as they relate to this incident. Defendant Lewis 9 “conducted a 7219 (documentation of injuries)” on Plaintiff after the alleged excessive force 10 incident. (Doc. No. 21 at 4-5). Despite the fact that Plaintiff had sustained a black eye, which 11 was swollen shut, bruising around his face and head, a slice on his right arm, and cuts and 12 bruising on both ankles, Lewis “refused to get Plaintiff [medical] attention.” (Id.). The injuries 13 were sufficiently serious that Plaintiff had to be transported to Bakersfield Adventist Hospital the 14 following day. (Id. at 5D). The FAC states a claim as to deliberate medical indifference because 15 it sufficiently alleges an objectively serious medical need, Defendant Lewis’ knowledge of that 16 need, and her refusal to treat him. McGuckin, 974 F.2d at 1059. 17 3. False Report (Claim 4) 18 Plaintiff also states Defendant Lewis “fabricated a false report to cover-up her violating 19 Plaintiff’s civil rights.” (Doc. No 21 at 5D). This allegation is vague and conclusory. Although 20 detailed factual allegations are not required to meet the pleading requirements of Rule 8, 21 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 23 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 24 2009) (internal quotation marks and citation omitted). Furthermore, “[f]alse statements, alone, do 25 not violate a prisoner’s constitutional rights,” Alverto v. Henderling, 2018 WL 7018718, at *1 26 (W.D. Wash. Oct. 2, 2018), report and recommendation adopted, 2019 WL 174674 (W.D. Wash. 27 afford plaintiff the benefit of any doubt”) (quoting Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 28 621, 623 (9th Cir.1988)). 1 Jan. 11, 2019). Further, to the extent Plaintiff claims he was issued a false disciplinary report as a 2 result, the filing of a false disciplinary report by a prison official against a prisoner is not a per se 3 violation of the prisoner’s constitutional rights. See Muhammad v. Rubia, 2010 WL 1260425, at 4 *3 (N.D. Cal. Mar. 29, 2010) (“[A] prisoner has no constitutionally guaranteed immunity from 5 being falsely or wrongly accused of conduct which may result in the deprivation of a protected 6 liberty interest. As long as a prisoner is afforded procedural due process in the disciplinary 7 hearing, allegations of a fabricated charge fail to state a claim under § 1983”) (internal citation 8 omitted)), aff’d 453 F. App’x 751 (9th Cir. 2011); Harper v. Costa, 2009 WL 1684599, at *2-3 9 (E.D. Cal. June 16, 2009) (“Although the Ninth Circuit has not directly addressed this issue in a 10 published opinion, district courts throughout California . . . have determined that a prisoner’s 11 allegation that prison officials issued a false disciplinary charge against him fails to state a 12 cognizable claim for relief under § 1983”), aff’d 393 F. App’x 488 (9th Cir. 2010). Thus, even 13 assuming that the disciplinary report was false, it does not state a standalone constitutional claim. 14 Canovas v. California Dept. of Corrections, 2014 WL 5699750, n.2 (E.D. Cal. 2014). 15 Accordingly, the FAC fails to state a claim as to Defendant Lewis’s alleged fabrication of a 16 report. 17 4. Retaliation (Claim 5) 18 Prisoners have a First Amendment right to file a grievance or civil rights complaint 19 against correctional officials. Brodheim v. Cry, 584 F. 3d 1262, 1269 (9th Cir. 2009). “Within 20 the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) 21 An assertion that a state actor took some adverse action against an inmate (2) because of (3) that 22 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 23 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 24 Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). A retaliatory motive may be shown 25 by the timing of the allegedly retaliatory act or other circumstantial evidence, as well as direct 26 evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003); McCollum v. Ca. Dep’t of Corr. 27 And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). Mere speculation that a defendant acted out of 28 retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases). 1 Two days after the August 31, 2019 excessive force incident, Plaintiff was taunted by 2 Correctional Sergeant Barnes and Correctional Officer Navaro who called him a “bitch” and 3 unsuccessfully tried to provoke him to violence. (Doc. No. 21 at 5E). Plaintiff asserts this was 4 done in retaliation for him filing a grievance. (Id.). The Court finds that Plaintiff fails to state a 5 claim as to this incident. Verbal harassment is not enough to state an adverse action for purposes 6 of retaliation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Because Plaintiff’s 7 complaint is devoid of facts indicating any adverse action beyond verbal harassment, the FAC 8 fails to state a cognizable claim of retaliation as to the September 2, 2019 incident. 9 D. October 27, 2019 and December 10, 2019 Rule Violation Reports (Claim 6) 10 An inmate alleging he has been subjected to a false rule violation report (RVR) can state a 11 cognizable civil rights claim in two ways: (1) by alleging the false RVR was filed in retaliation 12 for his exercise of a constitutional right, or (2) by alleging he was not afforded procedural due 13 process in the RVR hearing. Hackworth v. Arevalos, 2022 WL 18027835, at *10 (E.D. Cal. Dec. 14 30, 2022) (citations omitted), report and recommendation adopted, 2023 WL 2751532 (E.D. Cal. 15 Mar. 31, 2023). However, as noted supra, the filing of a false disciplinary report by a prison 16 official against a prisoner is not a per se violation of the prisoner’s constitutional rights. See 17 Muhammad v. Rubia, 2010 WL 1260425, at *3. 18 Plaintiff alleges in Claim 6 that on two different dates prison officials found him guilty of 19 rule violation reports (“RVR”) to “cover up” constitutional violations against Plaintiff. (Doc. No. 20 21 at 5G). First, this claim is misjoined. Plaintiff does not allege any facts indicating that the 21 incidents described are part of the same transaction, occurrence, or series of transactions or 22 occurrences as Claim 1. Plaintiff alleges vaguely that the October 27, 2019 RVR was issued to 23 “cover up the assault on this plaintiff by correctional officers mentiond [sic] in this complaint.” 24 (Doc. No. 21 at 5G). Plaintiff does not allege any facts to substantiate this conclusion, nor even 25 specify which assault or which correctional officers he refers to. Likewise, Plaintiff fails to allege 26 any facts indicating that the December 10, 2019 RVR has any connection to Claim 1 or the 27 Defendants involved. Therefore, based on misjoinder alone the claim cannot proceed in this 28 action. 1 In addition to being misjoined, as set forth below, the FAC also fails to state either a 2 cognizable First Amendment retaliation claim or Fourteenth Amendment due process claim based 3 on the false RVRs. 4 1. Retaliation 5 As set forth above, “[w]ithin the prison context, a viable claim of First Amendment 6 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 7 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 8 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 9 advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567–68. 10 Plaintiff states that the October 27, 2019 RVR was “planned and conspiritorized [sic] in 11 order to cover up the assault on this plaintiff by correctional officers mentiond [sic] in this 12 complaint.” (Doc. No. 21 at 5G). Plaintiff does not specify which assault was being covered up, 13 which correctional officers are involved, or assert any facts indicating coordination between them 14 and M. Maine, the officer who issued the RVR. Nor does Plaintiff allege any connection between 15 any protected First Amendment conduct by Plaintiff and the false RVR. The FAC thus fails to 16 state a First Amendment retaliation claim as to this RVR. 17 Similarly, Plaintiff alleges the December 10, 2019 RVR was “conspired & planned” to 18 cover up the fact that unspecified correctional officers “donated[,]” without Plaintiff’s consent, a 19 package that was sent to him by his mother. (Id.). However, there are no facts alleging that this 20 was done in response to Plaintiff’s protected First Amendment conduct, and therefore the FAC 21 fails to state a claim for retaliation as to the December 10, 2019 RVR. 22 2. Due Process Violation 23 Plaintiff also alleges a due process claim on the basis that his “witnesses were denied to be 24 present” at the October 27, 2019 disciplinary hearings, contrary to unspecified “departmental 25 policy.” (Doc. No. 21 at 5G). Plaintiff does not state whether he was found guilty of the RVR, 26 nor does not he state the nature of the deprivation he suffered, if indeed he was found guilty after 27 the RVR. Without a showing of injury, Plaintiff cannot state a Due Process claim. 28 //// 1 E. January 2, 2020 Excessive Force Incident (Claim 3) 2 The Court finds that Plaintiff may state a cognizable Eighth Amendment excessive use of 3 force claim as to the January 2, 2020 incident, however, because it is misjoined it may not 4 proceed in this action. Defendants Cerda-Tirano, Cruiel, and N. Limon allegedly punched 5 Plaintiff in the face, eyes, nose and head without provocation, an attack that Plaintiff describes 6 with sufficient specificity to state a claim. (Doc. No. 21 at 5B); see Iqbal, 556 U.S. at 678. 7 However, Plaintiff’s complaint violates the rules regarding joinder of claims. “Unrelated claims 8 against different defendants belong in different suits, not only to prevent the sort of morass [a 9 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the 10 required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous 11 suits or appeals that any prisoner may file without prepayment of the required fees.” George v. 12 Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants 13 not permitted unless both commonality and same transaction requirements are satisfied). The 14 January 2, 2020 incident occurred eight months after the excessive force incident in Claim 1, 15 involves an entirely different set of defendants, and bears no apparent causal connection to that 16 prior incident. 17 In the Court’s prior screening order, Plaintiff was cautioned not to include improperly 18 joined claims in any amended complaint. (Doc. No. 8 at 2). The Court previously gave Plaintiff 19 the option either to voluntarily dismiss the claim or stand on the complaint subject to the 20 undersigned recommending dismissal of Claim 3. (Doc. No. 26 at 15). Because Plaintiff has 21 declined to voluntarily dismiss the misjoined claim (Doc. No. 27 at 1), the undersigned now 22 recommends it be dismissed without prejudice. 23 F. February 4, 2020 Incident (Claim 5) 24 Although Plaintiff styles it only as a retaliation claim, the Court liberally construes 25 Plaintiff’s allegations regarding the February 4, 2020 incident as both an excessive force claim 26 and a retaliation claim and finds that those allegations may state a claim, but because they are 27 misjoined they may not proceed in this action. Plaintiff asserts that Defendant R. Gamboa picked 28 him up and dropped him while Plaintiff was in handcuffs, causing Plaintiff to later seek medical 1 evaluation, although Plaintiff does not specify any injuries that he suffered, nor whether Plaintiff 2 was dropped on his feet or on some other part of his body. (Doc. No. 21 at 5E-5F). Defendant O. 3 Valladolid screamed at Plaintiff in the shower and then later, when being escorted back to his 4 cell, kicked Plaintiff in the back, causing him to land on his face in his cell after which Plaintiff 5 “could not breath [sic] due to pain and being kicked in the back.” (Doc. No. 21 at 5E-5F). 6 The Court need not accept Plaintiff’s conclusion that he was “retaliated against . . . for 7 filing complaints; grievances & doing interviews on what has been taking place.” (Id. at 5E); see 8 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). However, the fact that 9 Defendant Valladolid screamed in Plaintiff’s face “your [sic] a snitch” (Id. at 5F) and that the 10 incident took place after Plaintiff filed multiple grievances against prison officials represents both 11 direct and circumstantial evidence of retaliatory motive. From the facts pled, there is no 12 indication that Defendant Valladolid kicking Plaintiff in the back “advanced a legitimate 13 correctional goal” or was necessary to control a dangerous inmate; rather it appears to have been 14 done maliciously and sadistically to cause harm. Rhodes, 408 F.3d at 567–68; Hudson v. 15 McMillian, 503 U.S. at 6–7. Accordingly, Plaintiff may state a claim both for excessive use of 16 force and retaliation as to Defendant Valladolid. 17 However, Plaintiff’s FAC, once again, violates the rules regarding joinder of claims. The 18 February 4, 2020 incident does not arise out of the same transaction, occurrence, or series of 19 transactions or occurrences as the May 14, 2019 incident, which involves a completely different 20 set of defendants. “Unrelated claims against different defendants belong in different suits, not 21 only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also 22 to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits 23 to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 24 required fees.” George, 507 F.3d at 607; see also Fed. R. Civ. P. 20(a)(2). Plaintiff was cautioned 25 not to include in his amended complaint improperly joined claims. (Doc. No. 8 at 2). The 26 undersigned previously afforded Plaintiff the option either to voluntarily dismiss Claim 5 or stand 27 on the complaint subject to the undersigned recommending dismissal. (Doc. No. 26 at 15). 28 1 Plaintiff declined to voluntarily dismiss the claim. (Doc. No. 27 at 1). The undersigned will 2 therefore now recommend that it be dismissed without prejudice. 3 G. Statute of Limitations on Plaintiff’s Cognizable but Misjoined Claims 4 In considering misjoined claims, the Ninth Circuit cautions the district courts to conduct a 5 prejudice analysis before dismissing the severed parties pursuant to Federal Rule of Civil 6 Procedure 21. Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (abuse of discretion 7 to dismiss rather than sever claims against improperly joined parties without evaluating the 8 prejudice to the plaintiff of dismissal). The Ninth Circuit expressly noted that such consideration 9 should include “loss of otherwise timely claims if new suits are blocked by statutes of 10 limitations.” Rush, 779 F.3d at 975 (citation omitted). 11 No statute of limitations is set out in 42 U.S.C § 1983. Instead, California’s two-year 12 statute of limitations on personal injury claims applies. Cal. Code Civ. Proc. § 335.1; Jones v. 13 Blanas, 393 F.3d 918, 927 (9th Cir. 2004); see also Canatella v. Van De Camp, 486 F.3d 1128, 14 1132 (9th Cir. 2007); Maldanado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). Under federal 15 law, civil rights claim like this accrues when plaintiff knows or has reason to know of the injury 16 giving rise to the claim. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004). See 17 Cal. Civ. Proc. Code §§ 335.1, 352.1(a) (two-year statute of limitations for personal injury 18 claims; two-year tolling period due to incarceration). The statute of limitations for bringing a 19 claim under § 1983 in California is tolled during the time a prisoner pursues his administrative 20 remedies and is potentially tolled up to an additional two years if plaintiff is incarcerated for a 21 term of less than life. See Moreno v. Thomas, 490 F. Supp. 2d 1055, 1062 (C.D. Cal. 2007) 22 (finding pro se prisoner’s section 1983 complaint timely despite being filed nearly four years after 23 claim arose); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable statute of 24 limitations must be tolled while a prisoner completes the mandatory exhaustion process.”); Cal. 25 Civ. Proc. Code §§ 335.1, 352.1(a). Under California’s test for equitable tolling, a plaintiff must 26 establish “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith 27 conduct on the part of the plaintiff.” Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 28 1191, 1204 (9th Cir. 2014) (explaining that federal courts borrow state law equitable tolling 1 provisions, unless they are inconsistent with federal law, and setting forth California's doctrine of 2 equitable tolling). 3 A search on of the CDCR Inmate Locator website for Plaintiff’s records, 4 https://inmatelocator.cdcr.ca.gov/, indicates that Plaintiff was admitted in February 2014 and has 5 a parole eligible date of January 2027. Therefore, the undersigned draws the reasonable inference 6 that Plaintiff is incarcerated for a term of less than life, qualifying him for up to two years of 7 tolling under Section 352.1(a), in addition to any period in which he was seeking administrative 8 remedies. Because Plaintiff’s earliest misjoined claim arose in late August 2019, the earliest time 9 that his claim would be barred (not counting administrative tolling) would be August 2023, four 10 months from this date of this order. While Plaintiff should act swiftly to refile a claim if he so 11 chooses, the undersigned finds that he would not be prejudiced by dismissal of the misjoined 12 claims, and that severance is not warranted. See Rush, 779 F.3d at 975. 13 Accordingly, it is ORDERED: 14 The Clerk of Court is directed to assign a district judge to this case. 15 Further, it is RECOMMENDED: 16 1. This action proceeds only on Plaintiff’s Eighth Amendment excessive force claim 17 against Defendants J. Navaro, I. Medina, O. Rodriguez, and A. Nunez, and his two Eighth 18 Amendment deliberate medical indifference arising from the incident on May 14, 2019 and 19 August 31, 2019 claims against Defendant C. Lewis. 20 2. All other claims and Defendants be dismissed from this action based on Plaintiff’s 21 misjoinder of claims and/or failure to state claims upon which relief may be granted. 22 //// 23 //// 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 27 days after being served with these findings and recommendations, a party may file written 28 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 > | Dated: __April 24, 2023 Mihaw. □□□ foareA Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19