United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED. R.
CIV. P. 12(b)(6), (ECF No. 19)
Hon
John A. Houston United States District Judge
Shannon
Riley (“Plaintiff”), a state prisoner proceeding
pro se and in forma pauperis, brought this action under 42
U.S.C. Section 1983 alleging that two correctional officers,
Vizcarra and Alvarez, and a lieutenant, Luna (collectively,
“Defendants”) at the Richard J. Donovan
Correctional Facility (“RJD”) violated his First,
Eighth, and Fourteenth Amendment rights in two incidents that
took place in February and March 2018. (See First
Am. Compl., ECF No. 17, at 10.)
Defendants
move to dismiss the First and Fourteenth Amendment claims in
Plaintiff's First Amended Complaint[1] pursuant to
Federal Rule of Civil Procedure 12(b)(6).[2] (Mot., ECF No.
19.) Plaintiff filed an Opposition to Defendants' Motion,
and Defendants did not file a reply. (Opp'n, ECF No. 22.)
For the
reasons set forth more fully below Defendants' Motion is
GRANTED with leave to amend.
I.
Plaintiff's Allegations
Plaintiff
was housed at RJD in 2018. (First Am. Compl. ¶ 3.) On
February 18, 2018, during a visit with his girlfriend,
Plaintiff went to use the restroom. (Id. ¶ 10.)
To access the inmate restrooms, Plaintiff knocked on a door
at the back of the visiting area, which one of the
Defendants, Officer Vizcarra, opened for him. (Id.
¶ 12.) As required by prison regulations, Plaintiff
removed all but his underwear and began to use the toilet
before Vizcarra stopped him, ordering him to “strip
out, ” bend over, spread his buttocks, squat, and
cough. (Id. ¶¶ 14-16.) Plaintiff was
“caught off guard” by the order and replied,
“I'm not leaving, I just need to use the
restroom.” (See Id. ¶¶ 17-18.)
Vizcarra repeated his order to strip out, and Plaintiff asked
“for what? I'm just about to use the
restroom.” (Id. ¶¶ 19-20.) In
response, Vizcarra became “extremely aggressive,
” standing face-to-face with Plaintiff, yelling, and
otherwise making Plaintiff feel threatened. (See Id.
¶¶ 21-25.) Plaintiff slowly backed away, complied
with Vizcarra's order, and left the area. (See
Id. ¶ 25.)
Following
this incident, Plaintiff filed a staff complaint against
Vizcarra requesting various personnel actions be taken,
including reassigning Vizcarra or instructing him to refrain
from similar conduct in the future. (See Id. Ex. A.)
Plaintiff also wrote to RJD's Warden to complain about
Vizcarra's actions and to request an investigation and
Vizcarra's removal. (See Id. Ex. B.)
Plaintiff
alleges that a few weeks later, Vizcarra and another
Defendant, Officer Alvarez, retaliated against him because of
these complaints, violating his First Amendment
rights.[3] (Id. ¶ 34.) On March 11,
2018, Plaintiff was drinking a cup of coffee during another
visit by his girlfriend. (Id. ¶¶ 35-37.)
When he finished his coffee, Plaintiff asked another inmate
to throw the cup away for him. (Id. ¶¶ 41,
43.) Before the other inmate was able to throw
Plaintiff's cup away, Alvarez stopped him and took the
empty cup. (Id. ¶ 44.) Shortly thereafter,
Vizcarra ended Plaintiff's visit with his girlfriend, and
ordered Plaintiff “to stand up and place his hands
behind his back.” (Id. ¶ 47.) Showing his
medical chrono, Plaintiff explained that because of medical
issues including a herniated disc and right wrist injury, he
is unable to place his hands behind his back without
experiencing painful cramps. (See Id. ¶¶
30-31, 50-51.) As a result of these conditions,
Plaintiff's chrono requires the use of waist chains
rather than handcuffs. (See Id. Ex. C.)
Despite
Plaintiff's documented medical conditions, he alleges
that Vizcarra forced his hands behind his back and handcuffed
him. (Id. ¶ 52.) Vizcarra then left Plaintiff
cuffed in the “non-contact visiting tank” for 45
minutes to an hour while Plaintiff experienced
“excruciating pain” and “begged and
pleaded” for someone to uncuff him. (See Id.
¶¶ 53-58.) Eventually Vizcarra returned to uncuff
Plaintiff and ordered him to “strip out.”
(Id. ¶ 60.) Because of the cuffing, Plaintiff
was unable to move his right arm and was in pain in his neck
and back. (Id. ¶¶ 62-63.) Stepping inside
the visiting tank, Vizcarra threatened Plaintiff with his
baton and stating that he would “crush
[Plaintiff's] skull” if Plaintiff moved
(Id. ¶¶ 64, 68.) Vizcarra also pulled
Plaintiff out of the room, slamming him against the wall and
twisting his wrist. (Id. ¶¶ 65-67.) After
again ordered Plaintiff to “strip out, ” which
Plaintiff protested, Vizcarra put him back in handcuffs and
returned him to the non-contact tank for thirty more minutes.
(Id. ¶¶ 69-71.)
When
Vizcarra finally uncuffed Plaintiff, he threatened to write a
Rule Violation Report (“RVR”) alleging that
Plaintiff possessed alcohol during visitation that day, an
assertion Plaintiff denies. (Id. ¶¶
73-74.) Plaintiff sought medical attention for continuing
pain that resulted from this incident and filed a staff
complaint against Vizcarra for retaliation and violating his
Eighth Amendment rights. (See Id. ¶¶
75-76, 79, Ex. E.) Later, Plaintiff filed another staff
complaint alleging that Vizcarra was spreading rumors about
Plaintiff. (Id. ¶ 80, Ex. G.)
On
March 11, Alvarez submitted an RVR alleging that Plaintiff
possessed alcohol during visitation earlier in the day.
(Id. Ex. H.) Vizcarra provided a supplemental report
included with this RVR, offering a substantially different
description of that day's events than Plaintiff's
Complaint. (See Id. Ex. H.) Plaintiff subsequently
pleaded not guilty and appeared for a hearing on the RVR
before Lieutenant Luna. (Id. ¶ 82, Ex. H.)
At this
hearing, Plaintiff alleges that Luna violated his Fourteenth
Amendment Due Process rights in several respects. First,
although Plaintiff was assigned an investigative employee to
assist him in responding to the RVR (see Id. Ex. H),
Plaintiff alleges that Luna denied his requests to call at
Alvarez and Vizcarra as witnesses at the hearing.
(Id. ¶ 84.) While Luna permitted Plaintiff to
provide a list of questions for Alvarez, Plaintiff alleges
that Luna read the questions to Alvarez and directed her on
how to answer. (Id. ¶¶ 95-97.) Second,
Plaintiff argues that he was deprived of the ability to
defend himself against the RVR because no testing was
performed that would have proved whether he consumed alcohol,
nor was it possible for Plaintiff to inspect the cup because
it was thrown away before the hearing. (See Id.
¶¶ 85-88, 90-94, Ex. H.) As support for his testing
argument, Plaintiff points to a state regulation which sets
forth the grounds for obtaining a urine sample from an inmate
“for the purpose of testing for . . . use of alcohol .
. ., ” or field testing seized substances. 15 Cal. Code
Reg. § 3290(c). The regulation provides that field tests
of suspected substances “may be performed” and
that urinalysis “may be done” “[w]hen there
is reasonable suspicion to believe the inmate has possessed,
distributed, used, or is under the influence of . . .
alcohol.” Id. (c)(1). Plaintiff requested that
such an analysis be performed the day after the
incident.[4] (See First Am. Compl. ¶ 85,
Ex. I.) Although this request was forwarded by prison
officials, Plaintiff alleges that it was ignored, and no
testing took place. (See Id. ¶ 88, Ex. I.)
Following
the hearing, Luna found plaintiff guilty and assessed losses
of credit and pay and a thirty-day suspension of visiting
privileges, concluding that a “preponderance of the
evidence . . . supports a GUILTY finding” for
possession of alcohol. (Id. Ex. H (emphasis in
original).) In support of this finding, Luna cited as
evidence the RVR submitted by Alvarez and Plaintiff's not
guilty plea. (Id.) Plaintiff alleges that this
finding also violated his right to due process because Luna
did state “‘specifically' what evidence [he]
relied upon.” (Id. ¶ 100.) Plaintiff
subsequently appealed and alleges that he exhausted all
available administrative remedies prior to filing suit.
(Id. ¶¶ 7, 101.)
II.
Defendants' Motion to Dismiss
a.
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