United States District Court, E.D. California
PERRY C. BLAIR, Plaintiff,
v.
CDCR, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO DISMISS, DEFENDANTS' MOTION TO
SEVER CLAIMS, AND PLAINTIFF'S MOTION TO AMEND [ECF Nos.
31, 32, 38.]
Plaintiff
Perry C. Blair is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States magistrate judge
jurisdiction on August 21, 2014. (ECF No. 7.) Defendants have
not consented or declined to United States magistrate judge
jurisdiction. This action was subsequently assigned to United
States district judge Lawrence J. O'Neill.
Currently
before the Court is Defendants' motion to dismiss and
motion to sever claims, filed February 9, 2016, respectively.
(ECF Nos. 31, 32.)
I.
RELEVANT
BACKGROUND
This
action is proceeding against Defendants Johnson, Ybarra,
Alva, Chan, O'Daniels, Franco, Sanchez, Esqueda, Santos
and John Doe (Assistant Warden) for cruel and unusual
punishment in violation of the Eighth Amendment, against
Defendant John Does # 3, 4, 5, and 6, for deliberate
indifference to a serious medical need, and against
Defendants Santos, Esqueda, and Ybarra for due process
violations.
On
February 9, 2016, Defendants filed a motion to dismiss the
complaint for failure to state a cognizable claim for relief
and a separate motion to sever claims. (ECF Nos. 31, 32.)
Plaintiff filed an opposition on June 2, 2016, and Defendants
filed a reply on June 9, 2016. (ECF Nos. 43-46.)
II.
DISCUSSION
A.
Motion to Dismiss Standard
A
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
legal sufficiency of a claim, and dismissal is proper if
there is a lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240,
1241-42 (9th Cir. 2011) (quotation marks and citations
omitted). In resolving a 12(b)(6) motion, a court's
review is generally limited to the operative pleading.
Daniels-Hall v. National Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d
903, 910 (9th Cir. 2007); Schneider v. California Dept.
of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
omitted); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept the factual allegations as
true and draw all reasonable inferences in favor of the
non-moving party, Daniels-Hall, 629 F.3d at 998;
Sanders, 504 F.3d at 910; Morales v. City of Los
Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in
this Circuit, pro se litigants are entitled to have their
pleadings liberally construed and to have any doubt resolved
in their favor, Wilhelm v. Rotman, 680 F.3d 1113,
1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio,
658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“If
there are two alternative explanations, one advanced by
defendant and the other advanced by plaintiff, both of which
are plausible, Plaintiff's complaint survives a motion to
dismiss under Rule 12(b)(6).” Starr v. Baca,
652 F.3d 1202, 1216-1217 (9th Cir. 2011).
“Plaintiff's complaint may be dismissed only when
defendant's plausible alternative explanation is to
convincing that plaintiff's explanation is implausible.
The standard at this stage of the litigation is not that
plaintiff's explanation must be true or even probable.
The factual allegations of the complaint need only
'plausibly suggest an entitlement to relief.'”
Id. “Rule 8(a) 'does not impose a
probability requirement at the pleading stage; it simply
calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence' to support the
allegations.” Id., quoting Twombly,
550 U.S. at 556.
B.
Prior Screening Order
As an
initial matter, Plaintiff's second amended complaint was
screened on September 1, 2015 and the Court found that
Plaintiff stated the above-mentioned cognizable claims. 28
U.S.C. § 1915A; Nordstrom v. Ryan, 762 F.3d
903, 908 (9th Cir. 2014) (“Dismissal for failure to
state a claim under § 1915A 'incorporates the
familiar standard applied in the context of failure to state
a claim under Federal Rule of Civil Procedure
12(b)(6).'”) (quoting Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012); Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (section
1915(e)(2)(B)(ii) screening standard is the same as Rule
12(b)(6) standard). Defendants submit that “the
Screening Order does not specifically address the arguments
put forth in this motion. Further, as explained below, the
Court did not separately discuss each allegation when
determining cognizable claims against specific
Defendants.” (ECF No. 32, Mot. at 1, fn.1.) While the
Court's screening order did not conduct an individual
analysis as to each Defendant, the Court conducted the same
examination as it does in all screening orders. In other
words, the Court's conclusion was based upon the same
legal standards as this 12(b)(6) motion. The Court is not
required to engage in a full analysis and discuss every
detail of the claims. Indeed, it is this Court's practice
to provide a detailed analysis only where it finds a
failure to state a claim. Insofar as Defendants
argue that Plaintiff's claims should be dismissed for
failure to state a cognizable claim for relief, they fail to
acknowledge and appreciate the Court's prior findings. As
explained below, Plaintiff's allegations are sufficient
to allow him to proceed past the pleading
stage.[1]
C.
Complaint Allegations[2]
Sometime
around January 2011, Plaintiff was escorted from the
administrative segregation section of Kern Valley State
Prison (KVSP) and assigned to share a cell with inmate
Rousie.[3] Plaintiff and Rousie were not compatible
cellmates based on their rival gang affiliations.
Thereafter
Plaintiff was locked in a three by two foot shower from 8:00
a.m. to 6:00 p.m. and both Plaintiff and Rousie were
threatened with confiscation of their personal property,
placement in segregation, and issuance of a rules violation
report. Based on the nature of the threats, Plaintiff and
inmate Rousie agreed to be housed as cellmates, and Plaintiff
believed Rousie would be placed in a different cell within
one day.
On
March 26, 2013, an inmate manufactured weapon was discovered
inside the cell. As a result, Plaintiff and inmate Rousie
were transferred to administrative segregation and eventually
to the security housing unit at California Substance Abuse
and Treatment Facility at Corcoran State Prison (SATF).
Sometime
around December 2012, inmate Trotter was released from the
hole and was reassigned to a dwelling which was occupied by
Plaintiff. Plaintiff informed the initiating officer that he
and inmate Trotter were not compatible cellmates because they
were from rival gangs. The initiating officer threatened both
inmates with confiscation of their personal property, rules
violations, and placement in the hole for delaying a peace
officer in their duties and refusing a housing assignment. In
fear of the consequences both inmates decided to comply with
the officer's demands on reliance that inmate Trotter
would be relocated the following morning. However, six months
thereafter, Plaintiff was still housed with inmate Trotter.
On May
14, 2013, Plaintiff was informed that marijuana was found in
his cell on February 5, 2013, by officer Garza. Officer Garza
issued a rules violation report to Plaintiff and inmate
Trotter.
On June
7, 2013, officer M. Lefler conducted a search of Plaintiff
and inmate Trotter's cell and an inmate manufactured
weapon was discovered in the toilet drain. Plaintiff was at
the door and tried to flush it down the toilet. Inmate
Trotter denied knowledge of the weapon and Plaintiff admitted
it belonged to him. Plaintiff stated that he intended to use
it to defend himself against inmate Trotter. As a result of
the incident, inmate Trotter and Plaintiff were separated.
While
awaiting the administrative hearing, officer John Doe
initiated a cell compaction with inmate Baker who is rival
gang member. Both inmates informed the initiating officer of
their rival gang status and the officer responded “if
ya'll refuse to signed [sic] the chrono and be cellies
your['e] going to forfeit 90 days, lo[se] 10 days of
yard, 90 days of dayroom, 90 days of telephone, 90 days of
canteen, 90 days of personal property and extension of your
SHU-terms.” With the reprisal in mind, the inmates
decided to accept the living arrangements.
After a
week after being placed in administrative segregation, inmate
Trotter sent his investigative employee officer Garza to
interview Plaintiff with regard to the possession of his
weapon charge. Plaintiff informed Garza that “the
weapon belonged to the Plaintiff and it was to be used on her
client in the event that inmate Trotter tried to attack him,
and that the weapon was never taken to yard.”
On
August 8, 2013, Lieutenant J. Johnson conducted the hearing
on the rules violation report for possession of a controlled
substance. It was alleged that the contraband belonged to
Plaintiff because it was discovered on the upper locker that
was assigned to him. Plaintiff stated that he
“didn't know anything about the drugs until
5-1-2013, when I was served with the notice of the 115 R.V.R.
for drugs found on 2-5-2013. As far as I'm concerned the
correctional officer could of planted it and C.O. Ibbs logic
of it belong [sic] to me due to my bunk assignment that is
discredited by your C.O. Welsh testimony.”
Lieutenant
Johnson opted to call C.O. Ibbs by way of a phone conference
to ask “when you discovered the controlled substance in
[building] 5, [cell] 101 on the upper locked was it out in
the open where you didn't have to search for it because
I'm hearing Blair's 115 for constructive
possession?” The Plaintiff interjected with, “you
mind [sic] as well just tell him exactly what to say if
your['e] going to lead him like I'm some type of
idiot.” Johnson ended the telephone conversation with
Ibbs and informed Plaintiff, “I'm finding you
guilty possession-constructive possession.” Plaintiff
inquired as to the meaning of constructive possession.
Johnson replied, “it means you had knowledge of and
access to the contraband and therefore guilty of constructive
possession.” Plaintiff stated “that's crazy
your telling me an inmate is guilty regardless of the
circumstances. Even their cellie admits guilt as long as they
were in the cell … I just testified that I had and
still have no knowledge of the drugs, where they came from,
or even when they were discovered and your own C.O. debunked
your other C.O.'s logic and case, so now your using a
loop hole which is basically indisputable as long as I
occupied the cell with another inmate. That being the case
I'm requesting single cell status because your rule
places me in a position whether it is impossible to exist in
a cell with another inmate without the threat of violence.
Due to the fact that I'm therefore obligated to searched
[sic] through all of my cellies personal property and dispose
of whatever contraband they may possess. Just search through
a cellie's personal property is a violation of cell
conduct which will result in a physical altercation
especially here on the high security facility on top of this
your['e] instructing us to dispose of them contraband or
run to the staff to be labeled a rat… That's a
death sentence in here. It's already bad enough
your['e] forcing us to house with rival gang members
against our will.” Lieutenant Johnson responded
“your['e] not obligated to house with rival gang
members, you can refuse incompatible cellies.”
Plaintiff informed Johnson, “yeah right, my last three
cellies were incompatible and we tried to inform your staff
of our rival gang status each time we were threatened with
disciplinary reprisal for refusing to accept each other as
cellies. Johnson indicated that it was an exception and
rarely happens. Plaintiff then informed Johnson that he and
his current cellie were rival gang members. In response,
Lieutenant Johnson insulted Plaintiff by telling him to just
“handle your business [and] if your['e] scared go
S.N.Y.” Plaintiff replied “nah your['e] the
bitch cuz [sic] back in the dayz [sic] C.O.s would actually
fight the inmates instead of waiting until we're
handcuffed to disrespect us. Now ya'll try to cause
disruption amongst us so you can sit back and entertain
yourselfs and write us up.”
Immediately
after the hearing, Lieutenant Johnson, Lieutenant Ybarra,
Sergeant Chan, officer O'Daniels, officer Franco, officer
Alva, and officer Esqueda started telling all of the inmates
housed in building E-1 that Plaintiff “was a snitch and
need to get [sic] dealt with.”
On
August 29, 2013, Plaintiff received the
“falsified” final copy of the administrative
hearing for the rules violation report log number
C-13-05-004. In retaliation for Plaintiff utilizing the
grievance process Lieutenant Johnson falsified the documents
to quote Plaintiff as stating, “It wasn't mine. It
was his. No I tell all my cellies, if you have it, I
don't want to see it.”
On top
of falsifying the document he also directed his subordinates
to inform the other inmates housed in E-1 “that the
Plaintiff's paperwork was faulty and proves he's a
snitch.” Defendants Johnson, Chan, Franco,
O'Daniels, Alva, Esqueda, and Santos began to tell all
the inmates to “deal with” Plaintiff
“because he's a snitch and he has the paperwork in
his cell. He snitched on his old cell Trotter on a possession
charge, ask to see his 115 final copy logged number
C-13-05004.” As a result other inmates requested to
view Plaintiff's rules violation report.
On
September 1, 2013, Plaintiff sent a letter to the warden. On
September 20, 2013, and November 9, 2013, Plaintiff sent two
more letters to the warden, Ombudsman Office and Office of
Inspector General (OIG) explaining the corrupt action taken
by prison officials in an attempt to have Plaintiff injured.
On
December 3, 2013, the OIG replied to Plaintiff's
complaint letter and after investigation found that
Plaintiff's claim was unsubstantiated. Plaintiff also
spoke with the warden at yard time, and he informed Plaintiff
that “there was nothing he could do and that I should
apologize to the Lt. and ask him nicely to modify the
report.”
Throughout
the ordeal, Plaintiff and inmate Baker continually requested
to be separated. Baker continued to say there is simply too
much controversy surrounding the Plaintiff and it was making
him look bad because the two were rival gang members and the
correctional officers were reporting that Plaintiff was a
snitch. Correctional officers would instruct inmate Baker to
handle his business and take Plaintiff down.
On
September 5, 2013, officers Franco and O'Daniels
approached Plaintiff's cell claiming Baker was scheduled
to have a conference with his psychologist. As a result, both
Plaintiff and Baker were handcuffed, and Plaintiff was
advised that he was being moved because Baker was passing
love letters to his psychologist claiming to be from
Plaintiff.
After
Plaintiff and inmate Baker advised officer O'Daniels of
the need to be separated, O'Daniels stated “stop
acting like bitches and handle your business, that's why
ya'll were moved over here where can't nobody hear
the screams.” On September 11, 2013, Plaintiff and
inmate Baker had a physical altercation inside the cell, and
Plaintiff suffered permanent injuries to his lower back,
neck, black eye, and an asthma attack due to the responding
officers' use of pepper spray to break up the fight.
Plaintiff
continuously requested a back brace, cane, and M.R.I. to
diagnose and treat his injuries due to the severe pain he was
suffering which caused him to collapse without notice.
Plaintiff's calls for “man down” were ignored
by correctional officers.
On
September 28, 2013, officer A. Sanchez escorted inmate Russ
to the Plaintiff's cell to initiate a cell compaction.
Plaintiff and inmate Russ described that they were not
compatible because Plaintiff is “Jewish” and
inmate Russ is “Muslim.” Officer Sanchez
threatened disciplinary action for refusing to cell with
inmate Russ, and officer Chan approved the action.
On
October 10, 2013, officer Santos introduced himself as the
Investigative Employee (IE) assigned to the rules violation
report log numbers ASE-13-09-018 (delaying officer and
refusing a cellmate) and ASE-13-09-002 (fighting), and asked
Plaintiff “what task the Plaintiff wanted him to carry
out in preparation of his defense?” Plaintiff submitted
a list of witnesses to be questioned and Santos directed
Plaintiff “just plead guilty, you were caught fighting
and you refused a celly.” Plaintiff replied, “nah
I want to present the mitigating factors to the committee in
an attempt to get the mid or low disciplinary
sanction.” Santos began arguing with Plaintiff yelling,
“just take the guilty plea.” No matter how calm
the Plaintiff remained Santos continued to yell at him trying
to force him to “just plead guilty.”
On
October 11, 2013, officer Esqueda introduced himself as the
working IE, and after opening the file stated, “This is
odd, I've never seen this before. Lt. Ybarra is say [sic]
I can't question these witnesses for you. Now did he even
know what you wanted to ask them.” Officer Esqueda
asked Lieutenant Ybarra about the witness interviews and
Ybarra stated “it looks as if your line of questions
are in preparation of a lawsuit. Your cellie already filed a
government claims and he's not about to assist ya'll
or help build your case.”
Officer
Esqueda spoke with Lieutenant Ybarra again and then stated
“I will question all your witnesses and type
this.” However, Esqueda never questioned
Plaintiff's inmate or staff witnesses and only typed the
Plaintiff's affidavit, and purposely falsified in writing
that Plaintiff was “sensitive needs yard status.”
During
the two rules violation hearings conducted by Lieutenant
Ybarra, he refused to allow Plaintiff to speak in his
defense.
On
November 7, 2013, Plaintiff and inmate Badelle were housed
together and were compatible cellmates. However, officer
O'Daniels approached Plaintiff's cell to initiate a
swap of cellmates. After threatening to take all of inmate
Badelle's property, Plaintiff and Badelle signed the
chrono as directed and as soon as Plaintiff was uncuffed he
attacked inmate Dawson.
Plaintiff
did not receive the necessary medical attention following the
altercation and was continually ignored by the doctor, John
Doe #2. While using the restroom, Plaintiff back and legs
gave out causing him to fall and injure his thumb, however,
he was not seen by staff for a few days despite the fact his
thumb swelled to twice its original size.
On June
2, 2014, Plaintiff's back and legs gave out again causing
him to fall backward into the toilet area of the bathroom.
Plaintiff's cellmate called “man down, ” but
no one responded for hours and instead the tower officer,
John Doe #3 told them to “shut up and stop
yelling.” When officers, John Doe ...