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Riley v. Vizcarra

United States District Court, S.D. California

December 2, 2019

SHANNON RILEY, CDCR # E-48875, Plaintiff,
v.
L. VIZCARRA, Correctional Officer; S. ALVAREZ, Correctional Officer; J. LUNA, Correctional Lieutenant, Defendants.

          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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