United States District Court, E.D. California
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 ...