Dumbrique v. Brunner

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT; REFERRING CASE TO SETTLEMENT PROCEEDINGS; STAYING AND ADMINISTRATIVELY CLOSING CASE; INSTRUCTIONS TO CLERK Re: Dkt. No. 22

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, a California prisoner currently incarcerated at Centinela State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983, regarding events that took place while he was incarcerated at Pelican Bay State Prison (“PBSP”). Plaintiff seeks declaratory relief and nominal, compensatory, and punitive damages. Docket No. 5 (“FAC”) at 11. The Court found that, liberally construed, the first amended complaint stated cognizable claims that PBSP officers Drager and Brunner retaliated against Plaintiff for engaging in hunger strikes, in violation of the First Amendment; and were deliberately indifferent to Plaintiff’s safety, in violation of the Eighth Amendment. Docket No. 6 at 2-3. Now before the Court is Defendants’ motion to dismiss and for summary judgment. Docket No. 22. Plaintiff has filed an opposition to the motion to dismiss and for summary judgment (Docket No. 39), and Defendants have filed a reply (Docket No. 45).

         BACKGROUND

         At all times relevant to this action, Plaintiff was incarcerated in PBSP’s Security Housing Unit (“SHU”).

         On July 8, 2013, Plaintiff commenced a hunger strike to protest his SHU living conditions, after his attempts to obtain relief by filing prison grievances, state habeas corpus actions, and motions in existing class action cases were unsuccessful. FAC at 2-3. At that time, Plaintiff was housed in Unit C3. Id. at 4. Some, but not all, of the other inmates also participated in the hunger strike. Docket No. 39-1 at 16-17 (“Dumbrique Decl.”) ¶ 2. On July 18, 2013, Plaintiff “suspended” his hunger strike. FAC at 4. On August 5, 2013, Plaintiff resumed his hunger strike. Id.

         On Thursday, August 8, 2013, Plaintiff was transferred to Unit C12. Officers Drager and Brunner had no involvement in the decision to transfer Plaintiff. Docket No. 24 (“Brunner Decl.”) ¶ 8; Docket No. 25 (“Drager Decl.”) ¶ 7.

         At that time, Officer Drager was assigned to Unit C3 and his duties included assisting inmates with housing transfers. Drager Decl. ¶ 2. Officer Drager states that he does not recall facilitating Plaintiff’s housing transfer on that date. Drager Decl. ¶ 6. Plaintiff recalls Officer Drager’s involvement with his housing transfer as follows: Officer Drager yelled loudly from the rotunda area of Unit C3: “Dumbrique 112, Belmudes 212, and Arredondo 211, pack up your property and get ready to move to the Debriefer Unit.” FAC at 4; Docket No. 39-1 at 1-6 (“Belmudes Decl.”) ¶ 4; Docket No. 39-1 at 12-14 (“Arredondo Decl.”) ¶ 3. Plaintiff responded, “Why? We ain’t debriefers.” FAC at 4; Belmudes Decl. ¶ 4. Officer Drager replied, “That’s not what I heard, pack it up!” FAC at 4; Belmudes Decl. ¶ 4. Officer Drager spoke loudly enough to be heard by all the inmates housed in Unit C3. Belmudes Decl. ¶ 4; Docket No. 39-1 at 12-14 (“Arredondo Decl.”) ¶ 4.

         Plaintiff alleges that a debriefer is “a prison informant or snitch who gives sensitive information to prison officials about prison gangs.” FAC at 4. Plaintiff alleges that debriefers are targeted for assault by other inmates, and that any suggestion that an inmate is a debriefer places an inmate’s life at risk. Id. Plaintiff, and fellow inmates Daniel Belmudes and Alfredo Arredondo, are not debriefers. FAC at 4-5; Belmudes Decl. ¶ 9; Docket No. 39-1 at 8-10 (“Treglia Decl.”) ¶ 3.

         As part of the housing transfer, Officer Drager entered Unit C3 to pass out mail and to unplug Plaintiff’s television. Plaintiff asked Officer Drager why he had identified Plaintiff, Belmudes, and Arredondo as debriefers. FAC at 5; Arredondo Decl. ¶ 5. Officer Drager responded, “You guys want to play games with this hunger strike and make my job harder, I can play games too. You guys are moving one way or another. I suggest you either start eating or pack it up.” FAC at 5; Belmudes Decl. ¶ 5; Arredondo Decl. ¶ 5.

         In accordance with Officer Drager’s orders, on August 8, 2013, Plaintiff packed up his property and moved to Unit C12. FAC at 5. Plaintiff was housed in Section D of Unit C12, along with Arredondo and Belmudes. Treglia Decl. ¶ 3.

         Plaintiff alleges that Unit C12 is known to both correctional officers and inmates as the designated housing unit for debriefers. FAC at 6; Belmudes Decl. ¶ 7; Treglia Decl. ¶ 2. Defendants claim that PBSP does not have a designated housing unit where debriefing inmates are housed. Docket No. 26 (“Olson Decl.”) ¶ 6. Defendants acknowledge that PBSP attempts to separate prison gang affiliates from debriefing inmates by housing them in different pods. Id. ¶ 7. Defendants state that during the 2013 mass inmate hunger strike, certain hunger strike participants were relocated to Unit C12 due to “institutional need.” Id. ¶ 9. Unit C12 is “within close proximity to program and medical facility in [Facility] C SHU.” Id. There were inmates housed in Unit C12 who did not participate in the hunger strike. Dumbrique Decl. ¶ 2.

         On August 10, 2013, Plaintiff ceased his hunger strike and resumed eating. Docket No. 27 (“Soderlund Decl.”), Ex. A.

         At that time, Officer Brunner was assigned to supervise the Unit C12 control booth as a relief officer. Brunner Decl. ¶ 2. This position was part-time. Officer Brunner only worked as the Unit C12 control booth officer on Saturdays and Sundays. Id. ¶ 4. Officer Brunner’s duties consisted of controlling the movement of inmates and prison staff in and out of Unit C12 by operating the switchboard, which opens and shuts the doors to Unit C12, and monitoring the activities of inmates and CDCR staff in Unit C12 though closed circuit televisions and radios. Id. ¶ 2.

         On Saturday, August 17, 2013, as floor officers were passing out dinner trays, Officer Brunner announced loudly to the other officers: “D Pod is where all the debriefers slash hunger strikers are.” FAC at 6; Belmudes Decl. ¶ 9; Treglia Decl. ¶ 4; Arredondo Decl. ¶ 6. Officer Brunner spoke loudly enough to be heard by all inmates in adjacent pods or sections. FAC at 6; Belmudes Decl. ¶ 9; Treglia Decl. ¶ 4; Arredondo Decl. ¶ 6. Officer Brunner denies making this statement. Brunner Decl. ¶ 10. At that time, Plaintiff, and inmates Arredondo, Ruiz, Argumedo, Treglia, and Belmudes were all housed in Section D (“D Pod”) of Unit C12. Belmudes Decl. ¶ 8. Information identifying the inmates housed in D Pod is posted outside D Pod and publicly visible to anyone who passes by D Pod. Inmates are identified by name, CDCR number, and photograph. FAC at 6.

         The inmates housed on the bottom tier of D Pod - Antonio Ruiz, Jose Argumedo, and Daniel Treglia - called out to Officer Brunner. FAC at 6; Treglia Decl. ¶ 5. When Officer Brunner came to the pod window, Ruiz, Argumedo, and Treglia demanded that Officer Brunner tell the inmates in the other pods that they were not debriefers and that Officer Brunner was just being spiteful. FAC at 6; Belmudes Decl. ¶ 10; Treglia Decl. ¶ 6. Officer Brunner told Ruiz, Argumedo, and Treglia, “Take your trays and I’ll think about it.” FAC at 6; Belmudes Decl. ¶ 10; Treglia Decl. ¶ 5; Arredondo Decl. ¶ 7. Ruiz, Argumedo, and Treglia did not take their dinner trays. FAC at 6. When the floor officers had finished picking up the dinner trays, Ruiz called to Officer Brunner. FAC at 7; Treglia Decl. ¶ 6. When Officer Brunner came to the window, Ruiz asked why Officer Brunner would say something like that about the inmates in D Pod. FAC at 7; Belmudes Decl. ¶ 11; Treglia Decl. ¶ 6; Arredondo Decl. ¶ 8. Officer Brunner responded that “the captain had all [the hunger striking inmates in Unit C12] on shit status for filing lawsuits and being flip-floppers.” FAC at 7; Belmudes Decl. ¶ 11; Treglia Decl. ¶ 6; Arredondo Decl. ¶ 8. Officer Brunner stated that the inmates should not have agreed to move to Unit C12 because they were now stuck in Unit C12. FAC at 7; Belmudes Decl. ¶ 11; Treglia Decl. ¶ 6; Arredondo Decl. ¶ 8. Officer Brunner stated, “That’s where you guys fucked up.” FAC at 7; Belmudes Decl. ¶ 11; Treglia Decl. ¶ 6; Arredondo Decl. ¶ 8.

         Plaintiff was housed in Unit C12 from August 8, 2013 to approximately March 30, 2014, when he was moved to Unit C10. Badura Decl., Ex. B. Between August 8, 2013, when Plaintiff was transferred to Unit C12, to June 5, 2014, the date Plaintiff initiated the instant action, Plaintiff was not involved in any altercations with other inmates. Soderlund Decl. ¶ 6.

         Plaintiff, Belmudes, Arredondo, Ruiz, Argumedo, and Treglia have all filed multiple lawsuits in state and/or federal court protesting the conditions of their confinement. Docket No. 1 at 12-13. Plaintiff has filed the following actions protesting the conditions of his confinement:

• Dumbrique v. Nakamra, C No 4:10-01197-PJH (PR), filed in the Northern District of California in 2010. In this action, Plaintiff alleged that PBSP officials were deliberately indifferent to his serious medical needs.

• In re Dumbrique, C No. HCPB-13-5134, filed in Del Norte Superior Court. In this action, Plaintiff challenged PBSP’s Kosher diet program via a writ of habeas corpus.

• In re Dumbrique, C No. HCPB-13-5136, filed in Del Norte Superior Court. In this action, Plaintiff challenged PBSP’s gang validation process via a writ of habeas corpus.

• In re Dumbrique, C No. HCPB-13-5025, filed in Del Norte Superior Court. In this action, Plaintiff challenged PBSP’s medical appeals system via a writ of habeas corpus.

• In re Dumbrique, C No. HCPB-13-5033, filed in Del Norte Superior Court. In this action, Plaintiff challenged PBSP’s lockdown program via a writ of habeas corpus.

• In re Dumbrique, C No. HCPB-13-5067, filed in Del Norte Superior Court. In this action, Plaintiff challenged PBSP’s prohibition on correspondence via a writ of habeas corpus.

Docket No. 1 at 13. Plaintiff also sought habeas relief for his criminal conviction in In re Dumbrique, C No. YA-033562-02, filed in Los Angeles Superior Court.

         DISCUSSION

         I. Motion to Dismiss

         Defendants argue that the Court should dismiss Plaintiffs claims brought against Defendants in their official capacities as barred by the Eleventh Amendment; that the Court should dismiss Plaintiffs § 1983 claims because there is no allegation that Plaintiff sustained any harm as a result of Defendants’ alleged conduct; and that the Court should dismiss Plaintiffs retaliation claims because participating in a hunger strike is not a “protected activity” within the context of a First Amendment retaliation claim. Docket No. 22 at 7. Plaintiff does not directly address these arguments in his opposition.

         A. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss on the ground that there is a “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss should be granted if a plaintiff fails to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court “must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and must construe pro se pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended, 275 F.3d 1187 (9th Cir. 2001).

         B. Analysis

         1) Official Capacity Claims

         The Eleventh Amendment to the United States Constitution bars a person from suing a state in federal court without the state’s consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); Natural Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 421 (9th Cir. 1996). The United States Supreme Court has held that state officials acting in their official capacities are not “persons” under § 1983 because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The Court concluded that such a suit is therefore no different from a suit against the state itself. Id. Accordingly, the Eleventh Amendment bars Plaintiff’s claims for monetary relief to the extent that they are based on acts engaged in by Officers Brunner and Drager in their official capacities. See Will, 491 U.S. at 71; Nesbit v. Dep’t of Pub. Safety, 283 F. App’x 531, 533 (9th Cir. 2008) (concluding that the district court properly dismissed prisoners’ claims against defendants acting in their official capacities). Defendants’ motion to dismiss Plaintiff’s official-capacity claims against Defendants is GRANTED, and those claims are DISMISSED with prejudice.

         2) 42 U.S.C. § 1983 claims

         Defendants argue that Plaintiff fails to state a claim under 42 U.S.C. § 1983 because Plaintiff’s allegation that Defendants’ actions have exposed him to the possibility of future harm is insufficient to state cognizable § 1983 claims. In support of their argument, Defendants cite an unpublished disposition, Williams v. Lopez, No. 94-15150, 1994 WL 526200, at *2 (unpub. Disp.) (9th Cir. Sept. 27, 1994). In Williams, the prisoner, who was serving a sentence for committing lewd and lascivious acts upon a child, alleged that a prison official had been deliberately indifferent to his safety when the prison official remarked: “Oh! You like children do you?” 1994 WL 526200, at *2. The prisoner alleged that the remark would have had the effect of placing him in extreme danger if any prisoners had overheard the remark and had known of his crime. Id. The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the prison official on this Eighth Amendment claim because the prisoner failed to present evidence that the remark had been heard by other prisoners or that the other prisoners would have sought to injure him. Id. The Ninth Circuit held that, under these circumstances, the remark could “only be regarded as verbal abuse and, as such, [was] not actionable.” Id.

         The Williams case is inapplicable here for two reasons.

         First, the standard of review for summary judgment motions differs significantly from the standard of review for motions to dismiss. A court will grant a summary judgment motion “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial[, ] . . . since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23 (1986). In contrast, Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson, 551 U.S. at 93. A plaintiff need only proffer enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp., 550 U.S. at 570. When ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Erickson, 551 U.S. at 94. In Williams, the Ninth Circuit affirmed the district court’s grant of summary judgment because the prisoner had failed to satisfy the standard for summary judgment. However, in evaluating the instant motion to dismiss, the Court accepts as true all of Plaintiff’s allegations in the FAC and liberally construes the FAC, Hebbe, 627 F.3d at 342.

         Second, unlike the plaintiff-prisoner in Williams, Plaintiff alleges that Defendants’ remarks were overheard by other prisoners, and that inmates known as debriefers are targeted for assault by other inmates. While a threat or verbal abuse may be insufficient to state a constitutional violation, see Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (verbal harassment insufficient to state constitutional deprivation under 42 U.S.C. § 1983); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong, nor do allegations that naked threat was for purpose of denying access to courts compel contrary result), the Ninth Circuit has found that deliberately spreading a rumor that a prisoner is a “snitch” in response to a prisoner’s attempt to seek redress for grievances may state a claim under 42 U.S.C. § 1983, see Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Accepting as true all of the factual allegations contained in the complaint, and keeping in mind that pro se pleadings must be liberally construed, Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988), the Court finds that Plaintiff’s claim that prison officials labeled him a debriefer in retaliation for his hunger strike states a cognizable § 1983 claim. Defendants’ motion to dismiss Plaintiff’s §1983 claims for failure to state a claim is DENIED.

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