Scott v. Arvizo

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF NO. 23.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Tiante Dion Scott (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 4, 2018, Plaintiff filed the Complaint commencing this action, together with a motion for leave to file a Complaint exceeding 25 pages in length. (ECF Nos. 1, 2.) On March 27, 2018, the court denied Plaintiff's motion to exceed 25 pages and granted Plaintiff leave to file an amended complaint not exceeding 25 pages. (ECF No. 13.) On April 30, 2018, Plaintiff filed the First Amended Complaint, together with a motion to incorporate separately filed exhibits that Plaintiff had not attached to the First Amended Complaint, to avoid exceeding the 25-page limit for the complaint. (ECF Nos. 14, 15.) On May 7, 2018, the court denied Plaintiff's motion to incorporate exhibits and granted him leave to file a Second Amended Complaint with his exhibits attached. (ECF No. 16.) On May 29, 2018, Plaintiff filed the Second Amended Complaint. (ECF No. 17.)

         On December 17, 2018, the court screened the Second Amended Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 18.) On March 21, 2019, Plaintiff filed the Third Amended Complain, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 23.)

         II. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare 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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF THIRD AMENDED COMPLAINT

         Plaintiff is currently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue in the Third Amended Complaint allegedly occurred at North Kern State Prison in Delano, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Sergeant J. Arvizo, Chief Deputy Warden J. Sutton, J. Knight (Appeals Examiner), M. Voong (Chief Appeals Examiner), C/O L. Baeza, C/O D. Ceballos, C/O L. Lira, C/O R. Morrell, M. Harder (Appeals Examiner) and John Does #1 and #2 (C/Os) (collectively, “Defendants”).

         A summary of Plaintiff's allegations follows:^[1]

         On January 27, 2016, C/O I. Lozano performed a random cell search of cell #109 in Facility Building #1, inhabited by Plaintiff and inmate Beloney. This cell search resulted in marijuana and manufactured alcohol (pruno) being found in the cell. C/O Lozano did not follow procedures to inform the two inmates that marijuana had been discovered with the pruno. Both inmates were issued Rules Violation Reports (RVRs). This caused several fights between the two inmates.

         Normally when contraband is found in a cell the two inmates are notified and asked if either of them wants to own up to the violation. Plaintiff and his cell mate Beloney were not notified until 77 days later, violating California regulations which permit a maximum of 45 days to issue an RVR, and 15 days to inform the inmate of misconduct. On February 12, 2016, Plaintiff and Beloney were both found guilty of possession of manufactured alcohol causing a chain reaction of fights between the two inmates.

         On February 27, 2016, sometime after 6:30 p.m., Plaintiff was engaged by Beloney while exiting the chow hall, and a fight started. While Plaintiff was fighting Beloney, someone --believed to be one of Beloney's friends -- stabbed Plaintiff from behind in the neck. Yard officers ordered the two inmates to stop fighting and get on the ground, which they did. Plaintiff and Beloney were released back to their living quarters. Apparently, Plaintiff's stab wound was not visible to the yard officers as it had not started bleeding yet. When Plaintiff got to the cell he noticed blood, and then profuse bleeding.

         On February 28, 2016, Plaintiff reported to his job assignment. He had very serious injuries and had difficulties with his assignments. Plaintiff told his co-worker, Miller, that he had been stabbed the night before and could not raise his right arm. Plaintiff was asking Miller to pick up the slack for him as Plaintiff could not raise his arm to do any heavy lifting. Miller was asked by Plaintiff's Investigative Employee (I.E.) if he knew that Plaintiff was injured.

         At the end of the work day, at about 15:24-15:26 hours, Plaintiff was released from his work assignment that lasted from 7:00 to 15:00 hours. On his way to his cell in Building #1, Plaintiff was ambushed by inmate Beloney in front of Building #1, and another fight started. Beloney pinned Plaintiff on the ground. Once off the ground, Plaintiff could not see any C/Os coming to break up the fight. Plaintiff ran away from Beloney, but Beloney followed and the fight continued. Defendant Sgt. Arvizo finally came and ordered the two inmates to get on the ground. Sgt. Arvizo threw a smoke grenade in the inmates' direction. The fight stopped and the inmates got down on the ground.

         Both inmates were taken to holding cages to be screened by a nurse and C/Os. Plaintiff requested to see a doctor and his request was denied. Sgt. Arvizo gave the inmates a No. Enemy/Safety Informational Chrono, which both inmates signed. The inmates returned to their assigned cells and Plaintiff thought the situation was resolved, especially since Beloney had signed the Chrono.

         Since this was the second fight between the two inmates, Plaintiff and his property were moved to Building #4; both inmates were previously in Building #1. Once in his new cell, Plaintiff noticed that some of his property was missing. The costlier items were his TV, CD player, Hot Pot, Nike high top shoes, two pairs of new shorts, two tank tops, three new long-sleeved t-shirts, head phones, a fan, ten CD's, one new baseball cap, and food. Someone went into Plaintiff's cell while he was at work and stole the property. The only way this was possible was if John Does #1 and #2 (Building #1 tower officers) let someone into Plaintiff's cell. Plaintiff believes this was retaliation for Plaintiff's two fights which caused officers to work harder and go home later.

         On February 29, 2016, Plaintiff went out on the yard to find out who stole his property and to ask one of inmate Beloney's friends to tell Beloney to end the conflict, which Plaintiff thought was over. Plaintiff was informed that one of Beloney's friends would talk to Beloney, but did not think Beloney would let it go. Beloney returned early from his small engines class and attacked Plaintiff as soon as he saw him. Plaintiff did not see a weapon, but a weapon was later recovered. Again, it took the C/O awhile to get there. After the fight, Plaintiff and inmate Beloney were placed in holding cages again to be interviewed by the nurse and C/O's for the second time, and the two inmates signed another No. Enemy Chrono. Plaintiff again asked for a doctor but his request was denied.

         In the holding cage, Plaintiff attempted to stop the conflict. Beloney antagonized Plaintiff and said, “I heard your cell got robbed.” Third ACP, ECF No. 23 at 11 ¶ 10.^[2] In Plaintiff's opinion, Beloney probably had something to do with the missing items stolen while Plaintiff was at work, and the culprit who opened Plaintiff's cell would have been the Tower Officers, Does #1 and #2.

         On March 1, 2016, Plaintiff sought assistance from a different group of Beloney's associates in an effort to have someone talk to Beloney. These individuals said there was nothing they could do to change Beloney's mind. They offered to provide a knife to Plaintiff to stab Beloney, but Plaintiff declined.

         In prison, a person who refuses to fight is considered weak and targeted for violence, robbery, and removal from the prison yard. Plaintiff was in that category, and his age and medical condition did not save him from the violence to come.

         Before Beloney could return from his small engines class, two individuals jumped Plaintiff causing him to be taken by ambulance to the Central Health Facility. Plaintiff was injured on his left cheek and needed seven stitches. The fight happened because the C/Os would not separate Plaintiff and Beloney after three fights. This is the supervisors' responsibility, namely Sgt. Arvizo and Captain C. Arce [not a defendant]. Under CDCR rules, anyone who is jumped by more than one inmate has to be relocated to another yard. Inmates know this so when they want a person relocated they get the person jumped, which is formally called a “removal” on the prison yard. ECF No. 23 at 13 ¶ 11. Plaintiff should not have had to endure prison justice because the officers deviated from policy.

         On March 1, 2016, Plaintiff was separated from Beloney and placed in administrative segregation (Ad-Seg) for safety concerns and further investigation. Before Plaintiff was sent to Ad-Seg, defendant Sgt. Avizo tried to trick him into signing a document that would have placed him on the Sensitive Needs Yard (SNY). In Plaintiff's opinion, Sgt. Arvizo was trying to cover up wrongdoing because Arvizo had not followed procedure and was trying to defame Plaintiff's dignity, character, and reputation. (See Exh. E1.)^[3] Plaintiff formed this opinion because officers allowed Plaintiff's property to be stolen, the reaction time to the fights were extremely long, and the inmates were not separated after they breached the first Chrono. Also, a proper investigation was not conducted, especially since a weapon was discovered. The weapon was somehow removed from the evidentiary hearing. This behavior is similar to the old ways when officers staged and watched Gladiator Fights. C/Os have informants on the yard, and an investigation would have shown that Plaintiff was being victimized when his cell was robbed. Also, a C/O had to open the cell. The correctional officers did nothing when they were notified that Plaintiff's property was missing, leaving Plaintiff to believe that the C/Os encouraged the theft.

         On March 4, 2016, Plaintiff was issued an RVR for fighting on February 29, 2016. On March 11, 2016, Plaintiff was issued an RVR for fighting on February 28, 2016. Plaintiff was appointed an investigative employee to assist him and ask questions of the involved C/Os. On March 12, 2016, Plaintiff was issued an RVR for fighting on March 1, 2016. On March 23, 2016, and March 31, 2016, Plaintiff had hearings and was found not guilty of two of the fights. Plaintiff believes Sgt. Arvizo was trying to intimidate Plaintiff for requesting an I.E. and for seeking redress of grievances. Sgt. Arvizo should have known he was attempting to punish a victim for being attacked, and the RVR 115 should have been dismissed. Plaintiff alleges that Sgt. Arvizo had a duty under CCR title 15 § 3286 to protect inmates and should have known that Plaintiff had to be separated from the yard after four days of fighting incidents. Sgt. Arvizo tried to cause Plaintiff to agree to be placed on the SNY instead of in Ad-Seg, but Plaintiff told him he would be in danger if he remained on the yard. Plaintiff would have been seen as a snitch if he agreed to be placed on the SNY. Sgt. Arvizo should have known there was no reason to place Plaintiff on the SNY. After issuing the RVR, Sgt. Arvizo retaliated and attempted to silence Plaintiff's effort to address grievances and defend himself from the charges. Plaintiff was only trying to defend himself and was severely injured. But at the RVR hearing, Sgt. Arvizo refused to answer the important questions presented to him and lied on other occasions. Sgt. Arizo's report was missing the descriptive requirement of CCR tit. 15 § 3286, to identify the victim and aggressor.

         Defendant C/O Ceballos lied on his report and lied on the record when asked questions at the RVR hearing. Ceballos answered six questions with the same answer, “I don't know which inmate Scott was.” ECF No. 23 at 21:1-2. This was retaliation because Plaintiff was exercising his First Amendment right to seek redress of grievances.

         Defendants C/O Baeza, C/O Lira, and C/O Morrell also lied on their incident reports and lied to the investigative employee. These officers conspired with Sgt. Arvizo to chill Plaintiff's First Amendment activities and failed to do their duty under 15 CCR § 3271 to secure the safety of all inmates.

         Defendant Warden Sutton violated his duty by allowing his subordinates to function in an improper fashion not designed to further the goals of the CDCR. A supervisor is not responsible for actions of his employees, yet it is a supervisor's duty to enforce a company's common goal. Warden Sutton had a legal responsibility to correct his employees for not correctly reporting the fight that Plaintiff had with inmate Beloney, and for attempting to engage in the “Code of Silence” when they deliberately refused to answer questions or lie in an investigation. Once Warden Sutton was informed of his employees' conduct and chose not to correct their actions, he became guilty of indifference to Plaintiff's First Amendment right to redress grievances that later attached Fourteenth Amendment violations.

         Third level appeals coordinators Voong, Harder and Knight failed to perform their duties. Plaintiff provided the third level of appeals with medical documents pertaining to his severe condition. The coordinator rejected the grievance with instruction to remove the medical documents. Plaintiff complied and sent the grievance back, and the coordinator failed to enforce CCR Tit. 15 ¶¶ 3286 and 3271. The appeals coordinators are also guilty of chilling and silencing Plaintiff from seeking redress when they made Plaintiff remove ...