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Romo v. Cate

United States District Court, E.D. California

August 29, 2014

EZEQUIEL ROMO, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

ORDER & FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se with an action for alleged civil rights violations, pursuant to the Civil Rights Act, 42 U.S.C. § 1983. In his complaint plaintiff alleges that his placement on contraband surveillance watch (CSW) at California State Prison-Sacramento (CSP-Sac) abridged his rights under the First, Eighth and Fourteenth Amendments. He has named numerous correctional officials with the California Department of Corrections and Rehabilitation (CDCR) as defendants.

The defendants have filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), on three grounds: (1) plaintiff has no viable claim against the appeals coordinators, defendants J. Baker, Williams and Holstrom, for their participation or decisions in the prison grievance process; (2) plaintiff has no viable claim against defendant Walker, the warden at CSP-Sac, because he has failed to allege that the warden personally participated in any of the alleged constitutional violations; and (3) plaintiff has no viable claim against defendants Stewart, Mendoza, E. Baker, Virga, Montez, Hood, Engellenner, Buchanan, Kramer, Ellen[1] or Drummond "because Plaintiff's placement on CSW in and of itself did not violate the First, Eighth or Fourteenth Amendments, and Defendants are entitled to qualified immunity with respect to [the] Eighth Amendment claim." (Motion (Doc. No. 47) at 2.)

I. Plaintiff's allegations

In his complaint plaintiff alleges more specifically as follows. On November 13, 2009, the plaintiff arrived at CSP-Sac en route to a re-sentencing hearing in state court. (Fifth Amended Complaint (Doc. No. 21) ¶ 41.) Soon after his arrival he was stripped and subjected to a visual body cavity inspection and "wanded by a metal detector [while] awaiting to be housed in administrative segregation." (Id.) After that, plaintiff overheard a "superior-rank[ing]" officer say "plaintiff was not going to [administrative segregation] just yet[.]" (Id. at ¶ 45.) Instead two officers were assigned to escort plaintiff to contraband surveillance watch despite plaintiff's protests that he carried no contraband and without granting his request for an x-ray.[2] (Id. at 46.) Defendant Buchanan told plaintiff that he "could probably have plastic or some kites that won't show on an x-ray[.]" (Id. at ¶ 49.)

Once he was placed on CSW, plaintiff wore two pair of underwear duct taped around his legs and waist, two t-shirts duct taped around his arms, waist and torso, and two jumpsuits taped at his ankles, thighs, waist and arms. (Id. at ¶ 58.) Plaintiff was also equipped with waist-chain restraints. (Id.) He was put in a cold cell "without a toilet or water and a mattress and all basic hygiene." (Id.) An Officer Jones issued plaintiff a mattress but defendant Engellener confiscated it within five minutes. (Id. at ¶ 60.)

Throughout his complaint, plaintiff states he asked different correctional officers why he had been placed on CSW. All of them said they did not know or simply refused to say. However, after plaintiff told Officer Herriera that he was at CSP-Sac because he had been successful on appeal and was due to be re-sentenced, Herriera stated, "[N]ow you know the reason why you're on CSW." (Id. at ¶ 63.) Thus plaintiff states his "belief [that] the reason for [his] subjective placement on CSW [was] retaliati[on] for... legitimate access to [the] courts and [to] interfere with his court order while placed on CSW; to frustrate plaintiff without his legal work[, ] as [there was] no legitimate penological interest for CSW." (Id. at ¶ 64.)

On November 16, 2009, plaintiff "was able to use the restroom, " which revealed no contraband. (Id. at ¶ 66.) At some point thereafter, he was re-assigned to another CSW cell, this time on the prison's B-Facility.[3] When he arrived there, "the new cell was not clean or disinfected[, ] with dirty linen still in the cell and [a] bottle filled with urine." (Id. at ¶ 69.) Plaintiff was often required to wait to use the bathroom until "any willing supervisor" was available to oversee the process. (Id. at ¶ 73.)

On November 20, 2009, defendant Buchanan told plaintiff he "was scheduled for court and would be transported as is on CSW; no shower; no shave and returned to CSW after court." (Id. at ¶ 86.) Plaintiff asked Buchanan for his legal papers to prepare for court but that request was denied. (Id. at ¶ 87.) The next day, November 21, plaintiff was informed he would be leaving CSW. (Id. at ¶ 93.) On November 23, he requested his legal papers again, this time from Officer Almodovar. "Almodovar stated he spoke to [Captain] Stewart and was told plaintiff had his legal work." (Id. at ¶ 94.) According to plaintiff, defendants withheld his legal materials in retaliation for his successful appeal of his sentence.[4] (Id. at ¶ 102.)

Plaintiff remained on CSW for eight days. (Id. at ¶ 81.) He claims conditions on CSW "exacerbated the chronic arthritis and asthma plaintiff suffers from, [which was] documented prior to CSW placement." (Id.) He further claims that "[d]efendants denied plaintiff access to medical care while housed... on CSW." (Id. at ¶ 82.) However, plaintiff does describe in his complaint one occasion during the eight days he was on CSW in which a nurse took his vital signs and administered anti-fungal cream. (Id. at ¶¶ 83-85.) Plaintiff alleges that he saw a doctor after his release from CSW and was

told nothing could be done for the pain and discomfort suffered on CSW, as it was exacerbated from the shackles and restraints due to arthritis and lack of movement. The physician issued Tylenol and anti-fungal cream for the rash and bruising and discoloration [from] tape pulled from appendages.

(Id. at ¶ 99.)

II. Plaintiff's claims

Liberally construed, the complaint makes several claims derived from plaintiff's placement on CSW and his subsequent attempt to obtain relief through CDCR's administrative prison grievance process. Plaintiff claims that: (1) defendants J. Baker, Williams and Holstrom, the officials assigned to his inmate appeals, "denied all meaningful review" of his claims, in violation of his right to due process under the Fourteenth Amendment (Id. at ¶ 116); (2) defendants Stewart, Buchanan, Mendoza and E. Baker "conspired to place plaintiff on CSW" in retaliation for his successful appeal of his sentence and "to frustrate and impede his scheduled court appearance, " in violation of the First Amendment (Id. at ¶ 119); (3) defendants Stewart, Buchanan, Engellener, Mendoza, E. Baker, Montez and Hood withheld plaintiff's legal materials without any legitimate penological purpose and in retaliation for his exercise of his rights under the First Amendment (Id. at ¶¶ 88, 129, 139); (4) similarly situated inmates were allowed an x-ray, access to proper hygiene and clean clothing as part of their placement (or non-placement) on CSW, rendering the denial of the same provisions to him a violation of the Equal Protection Clause (Id. at ¶ 152); (5) deliberate indifference to his serious medical needs while on CSW (Id. at ¶81-82, 146); (6) conditions of confinement on CSW violated the Eighth Amendment prohibition against cruel and unusual punishment (Id. at ¶¶ 70, 75, 123, 133-34, 143, et al.); (7) his placement on CSW occurred without the due process required by the Fourteenth Amendment or where there are liberty interests created by state law (Id. at ¶ 117, 149); (8) violations of the California Constitution and other provisions of state law (Id. at ¶¶ 151, 157; also pages 44-45 (Fourteenth and Fifteenth Causes of Action)); (9) failure to train and supervise certain defendants. (Id. at ¶ 79.)

III. Analysis

Federal Rule of Civil Procedure 12(b)(6) requires a court to dismiss a claim if it fails to state a basis on which relief could be granted. A court considering whether to grant a motion to dismiss under Rule 12(b)(6) must accept the allegations of the complaint as true, Erickson v. Pardus , 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner , 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly , 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of deciding a motion to dismiss under Rule 12(b)(6). Hal Roach Studios v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

A. Claims based on the prison administrative appeals process

Defendants J. Baker, Williams and Holstrom are correct in arguing in support of their motion to dismiss that their "action in responding to Plaintiff's appeals, alone, cannot give rise to any claims for relief" under 42 U.S.C. § 1983. (Defendants' Brief (Doc. No. 47-1) at 13.) "[I]nmates lack a separate constitutional entitlement to a specific grievance procedure." Ramirez v. Galaza , 334 F.3d 850, 860 (9th Cir. 2003). "Therefore, plaintiff cannot state a cognizable civil rights claim against defendants... based solely on their roles in denying a prison grievance." Johnson v. Hill, No. 2:10-cv-2522 KJN P, 2010 WL 4386722 at *2 (E.D. Cal. Oct. 28, 2010). All claims based on any defendant's participation in the prison grievance process should therefore be dismissed.

B. Claims against defendant Walker, as Warden of CSP-Sac

Defendant Walker, the warden at CSP-Sac, argues that all claims brought against him must be dismissed because (1) the complaint alleges a claim of failure to train or supervise against him "without any further explanation" and (2) the plaintiff otherwise proceeds on a theory of respondeat superior as a basis of Walker's liability. (Defendant's Brief at 14.) As to the latter point, defendant Walker says the complaint "only alleges that Defendant Drummond told Plaintiff that he would speak with Defendant Walker about Plaintiff's placement on CSW." (Id. at 15.) He maintains that there is "no allegation that Defendant Walker personally participated, directed, or knew of any violations or failed to act." (Id. at 15.)

Indeed it is well established that a state actor in a supervisory position cannot be held individually liable in a civil rights action for the constitutional violations of a subordinate. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). To state a claim of individual liability against a supervisor, a plaintiff must aver some causal connection between the supervisor's conduct and the violation. See Redman v. County of San Diego , 942 F.2d 1435, 1446 (9th Cir. 1991). A claim may lie against a supervisor on a theory of official liability if he "implements a policy so deficient that the policy itself is a repudiation constitutional rights and is a moving force of the constitutional violation." Hansen v. Black , 885 F.2d 642, 646 (9th Cir. 1989) (internal citations and quotation marks omitted).

Defendant Walker is correct that a subordinate's merely informing him of plaintiff's placement on CSW does not implicate him in any direct way with constitutional violations that might have happened there. He is right too that none of the alleged acts of other defendants can be imputed to him for purposes of liability under § 1983. The only possibility of recovery against Walker, therefore, lies in the viability of plaintiff's claim that Walker failed to train or supervise the officers who had direct involvement in the constitutional violations alleged in the complaint.

Inadequate training or supervision may be the basis of official liability (or "municipal liability") under § 1983 "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police [or correctional officers] come into contact.'" Flores v. County of Los Angeles, ___ F.3d ___, ___, No. 12-56623, 2014 WL 3397219 at *2 (9th Cir. July 14, 2014) (quoting City of Canton v. Harris , 489 U.S. 378, 388 (1989)). "As to an official in his individual capacity, the same standard applies - [the plaintiff] must show that [the defendant] was deliberately indifferent to the need to train subordinates, and the lack of training actually caused the constitutional harm or deprivation of rights." Id . (citing Connick v. Thompson, ___ U.S. ___, ___ , 131 S.Ct. 1350, 1358 (2011)). This standard requires a plaintiff to "allege facts to show that [the government agency and the individual officer] disregarded the known or obvious consequence that a particular omission in their training program would cause [governmental] employees to violate citizens' constitutional rights.'" Id . (citing Connick , 131 S.Ct. at 1360).

In Young v. City of Visalia , 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009), the district court dismissed a failure-to-train claim because it ran afoul of Iqbal's prohibition against "conclusory, threadbare' allegations that merely recite the elements of a cause of action[.]" The complaint in Young alleged deliberate indifference "without identifying the training and hiring practices, how those hiring practices were deficient, and without an identification of the obviousness of the risk involved." Id. at 1150. The same is true of plaintiff's complaint in this action. Plaintiff's allegations are nowhere specific about the training Warden Walker oversaw, the deficiencies therein, or how obvious the risks flowing from those deficiencies must have been. The most detail the complaint provides is an allegation that Warden Walker failed to "prevent [his subordinates] from a pattern of retaliatory and unconstitutional harassment" - in other words, he failed to prevent a constitutional violation. That is the sort of conclusory allegation that falls short under Rule 12(b)(6) and Iqbal.

Plaintiff's claim against defendant Warden Walker for his alleged failure to train or supervise ...


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