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Howard v. Virga

United States District Court, E.D. California

March 28, 2014

GREGORY E. HOWARD, Plaintiff,
v.
TIM VIRGA, et al., Defendants.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On November 20, 2013, the court dismissed plaintiff's complaint with leave to amend. After receiving extensions of time, on March 19, 2014, plaintiff filed a second amended complaint. Plaintiff's "Second Amended Complaint" includes two completed complaint forms, both bearing the instant case number. (ECF No. 24.) The first portion of plaintiff's filing addresses ten unrelated incidents ("unrelated incidents"). (ECF No. 24 at 1-20.) The second portion, encapsulated in its own complaint form entitled "Excessive Use of Force, " addresses concrete Eighth Amendment violations resulting from an incident on November 1, 2013. (ECF No. 24 at 11-27.) Because these two complaints pertain to unrelated incidents, the court will address each complaint separately.

1. Unrelated Incidents

The first part of plaintiff's filing raises allegations from ten different and unrelated incidents from December 7, 2011, to January 3, 2013. (ECF No. 24 at 1-10.) This portion of plaintiff's filing suffers defects the court has addressed in prior orders. (ECF Nos. 7, 15.) Plaintiff again groups defendants together, without specifically identifying what each named defendant did to violate plaintiff's constitutional rights. (ECF No. 24 at 4, 6, 7.) Plaintiff was previously informed that he must specifically allege a causal connection or link between the named defendant and the constitutional violation alleged. (ECF Nos. 7 at 3-4; 15 at 6.)

Plaintiff alleges Sgt. Robichaud displayed "unprofessional conduct, disrespect and rude behavior" toward plaintiff. (ECF No. 24 at 4.) As plaintiff was previously informed, such allegations fail to rise to the level of a civil rights violation. (ECF No. 15 at 6.) Verbal abuse and threats, without more, are not sufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero , 830 F.2d 136 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983); Freeman v. Arpaio , 125 F.3d 732 (9th Cir. 1997) (abusive language directed at prisoner's religious and ethnic background not actionable). "[A]n institutional employee's verbal harassment or idle threats to an inmate, even if they cause an inmate fear, anxiety, or discomfort, do not constitute an invasion of any identified liberty interest." McClellan v. Bassett, 2006 WL 2079371 (D. Va. 2006).

Plaintiff, who is a native American, appears to contend that he should not be housed with African American inmates. "Racial segregation, which is unconstitutional outside the prison, is unconstitutional within prisons, save for the necessities of prison security and discipline.'" Cruz v. Beto , 405 U.S. 319, 321 (1972) (quoting Lee v. Washington , 390 U.S. 333, 334 (1968) (per curiam)). Thus, plaintiff is not entitled to segregated housing based on race.

Plaintiff appears to allege that on March 6, 2012, both outgoing and incoming mail was lost while plaintiff was in administrative segregation. (ECF No. 24 at 4.) Plaintiff also alleges that on March 23, 2011, "outside support was returned to sender." (ECF No. 24 at 4.) Such vague and conclusory allegations fail to state a cognizable civil rights claim. Such random incidents over the course of two years, without more, do not rise to the level of a constitutional violation. Grady v. Wilen , 735 F.2d 303 (8th Cir. 1984); Armstrong v. Lane , 771 F.Supp. 943, 948 (C.D. Ill. 1991) (unintentional losses and delays of plaintiff's mail, "while understandably frustrating... fail to rise to the level of a constitutional violation").

Plaintiff includes vague and conclusory allegations concerning errors in classification and false reports. Plaintiff does not have a constitutional right to a particular classification. See Moodv v. Daggett , 429 U.S. 78, 88 n.9 (1976) (rejecting claim that a parole violator warrant and detainer adversely affected his prison classification and qualification for institutional programs); Hernandez v. Johnston , 833 F.2d 1316, 1318 (9th Cir. 1987) ("a prisoner has no constitutional right to a particular classification status"). In addition, plaintiff again includes vague allegations concerning alleged false reports. As plaintiff was advised on November 20, 2013, "[a] prisoner has no constitutionally guaranteed immunity from being wrongly or falsely accused of conduct which may result in the deprivation of a protected liberty interest." Lopez v. Celaya , 2008 WL 205256 at *5 (N.D. Cal. Jan. 23, 2008). (ECF No. 15 at 6-7.)

Throughout the initial second amended complaint, plaintiff uses the terms "racial discrimination, " and "retaliation, " but fails to include factual allegations sufficient to support such causes of action. On August 30, 2013, plaintiff was advised that he must specifically identify the individuals who allegedly discriminated against plaintiff, and provide factual allegations to support such a claim, and directed him to pertinent Ninth Circuit authority. (ECF No. 7 at 5.) On November 20, 2013, the court provided plaintiff with the elements required to state a cognizable retaliation claim pursuant to Rhodes v. Robinson , 408 F.3d 559, 567-68 (9th Cir. 2005). (ECF No. 15 at 7.) Plaintiff's conclusory use of these terms fails to state cognizable civil rights violation. Given plaintiff's repeated failure to include specific factual allegations, it is unlikely plaintiff can do so.

For all of the above reasons, plaintiff has failed to state cognizable civil rights claims in the initial portion of his March 19, 2014 filing. Plaintiff's original complaint was filed July 26, 2013. Despite being provided two opportunities, and multiple extensions of time in which to do so, plaintiff has been unable to provide specific factual allegations to support cognizable § 1983 claims. Plaintiff continues to ignore the court's instructions, and to include multiple, unrelated claims in one complaint. Accordingly, the undersigned finds it would be futile to allow plaintiff to amend his unrelated claims, and dismisses plaintiff's unrelated claims without leave to amend. Plaintiff shall not renew these unrelated claims in any third amended complaint.

2. Alleged Eighth Amendment Violations

As set forth above, plaintiff appended a separate complaint form entitled "Excessive Use of Force." (ECF No. 24 at 11-27.) In this separate complaint, plaintiff alleges that on November 1, 2013, defendants Williamson, Wuest, Moltzen, and Bookout "slammed plaintiff on the ground, " and "aggressively attacked" plaintiff. (ECF No. 24 at 17.) Plaintiff claims these defendants jumped on him, punched and poked him, and kicked plaintiff while he was face down on the ground. Plaintiff alleges that defendants Bookout and Moltzen snatched plaintiff off the ground and dislocated both of his shoulders. Plaintiff contends that defendant Johnson failed to protect plaintiff, watching while these defendants used excessive force, and, after plaintiff was cuffed, defendant Johnson "slapped hands with [defendant] Williamson and said, we finally got Howard off the yard." (ECF No. 24 at 18.) After plaintiff was escorted to the C-Facility Medical holding cage, plaintiff alleges that defendants Bookout and Moltzen grabbed plaintiff and slammed his face into the metal cage mesh two times, cutting a deep gash, and causing bleeding, swelling and bruising. While slamming his face, defendants Bookout and Moltzen allegedly told plaintiff that they were "tired of [his] shit and the stupid appeals [he] filed on them and in the courts." (ECF No. 24 at 18.)

Such detailed factual allegations state potentially cognizable claims against defendants Williamson, Wuest, Moltzen, and Bookout based on allegations of excessive force, and defendant Johnson based on plaintiff's allegation that defendant Johnson failed to protect plaintiff from the use of excessive force, all in violation of the Eighth Amendment. See 28 U.S.C. § 1915A.

However, the court finds that the excessive use of force portion of the second amended complaint does not state cognizable Eighth Amendment claims against defendants Whalen, Montes, Gonzales, Herrera, Ayalos, Lujan, Clifton, Mendenwald, Vela, Teachout, Saeteurn, and Erickson. (ECF No. 24 at 19, ¶ 20.) Unlike the detailed factual allegations set forth against defendants Williamson, Wuest, Moltzen, Bookout, and Johnson, plaintiff lumps into one paragraph (no. 20) his claims ...


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