Blair v. CDCR

          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 ...