Free Order - District Court of California - California

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THOMAS RAY WOODSON, Plaintiff, No. C 07-04925 CW (PR) ORDER OF SERVICE

J. RODRIGUEZ, et al., Defendants. /

Plaintiff Thomas Ray Woods, a state prisoner, has filed the present pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging a constitutional rights violation while incarcerated at Salinas Valley State Prison (SVSP). His motion for leave to Venue is proper

proceed in forma pauperis (IFP) has been granted.

in this district because the events giving rise to the action occurred at SVSP, which is located in this district. § 1371(b). BACKGROUND Plaintiff alleges that Defendants SVSP Sergeant Kircher and SVSP Correctional Officers J. Rodriguez, E. Camarena, J. Parra and D. Vega used excessive physical force in violation of the Eighth Amendment. Specifically, Plaintiff claims that at around 1:00 p.m. See 28 U.S.C.

on March 23, 2006, a mass cell search occurred because a sheet pan was missing from the kitchen. Defendants Rodriguez, Camarena and

Parra approached Plaintiff's cell during the search, ordered Plaintiff to put his hands through the food port in order to place handcuffs on him, and handcuffed him for cell removal. Afterwards,

Defendants Rodriguez and Camarena "thrash[ed] Plaintiff's cell" while Defendant Parra detained Plaintiff against the wall outside of his cell. Plaintiff then attempted to inform Defendant Kircher

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"about the harrassment [sic] he was going through under the guise of a cell search." (Compl. at 4.) Plaintiff slightly turned his

head to convey his message and stated, "I need to speak with you Sergeant, I am being harassed." (Id.) When Plaintiff received no

response, he asked Defendant Kircher if he was "condoning this harrassment [sic]." (Id.) Defendant Kircher ignored Plaintiff and

ordered Defendants Parra and Vega to remove Plaintiff from the area. As Defendants Parra and Vega removed Plaintiff, Plaintiff

asked Defendant Kircher again if he was "sanctioning this harrassment [sic]." Defendant Kircher then ordered Defendants (Id.) Defendant Parra

Parra and Vega "to take Plaintiff down."

kicked Plaintiff's feet out from under him causing him to fall face first onto the pavement and to suffer from a swollen right eye. While Plaintiff was on the ground, Defendant Parra "used further unnecessary brut force by bending Plaintiffs [sic] cuffed right wrist and arm up towards Plaintiff's head causing excruciating pain to Plaintiffs [sic] wrist and shoulder joints." (Id.) Defendant

Vega "dropped his knee with [his] full body weight [on] Plaintiffs [sic] neck and upper back, laughing and giggling at Plaintiff's squeels [sic] of pain." (Id.) In response to the commotion,

Defendants Camarena and Rodriguez along with "several other unidentified guards" approached Plaintiff while he was on the floor and began kicking Plaintiff in the legs and hips. After shackling Plaintiff's legs, Defendants Parra and Vega forced Plaintiff to stand up and walk with his boxers down exposing his genitalia. Plaintiff was then taken outside where Defendants

Parra and Vega threw him to the ground again damaging his knees, dislocating his shoulder, and scraping the skin off of his swollen

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right eye. dislocated.

Plaintiff told Defendant Kircher that his shoulder was Defendant Kircher instructed Defendants Camarena and Defendant Kircher

Rodriguez to take over as Plaintiff's escorts.

later ordered them to check Plaintiff's handcuffs and to put him down. After his handcuffs were checked, Plaintiff was yanked to

his feet by Defendants Rodriguez and Camarena and again "thrown" to the cement pavement, which caused his shoulder to "pop[] back into [its] socket." (Id. at 5.)

Subsequently, Plaintiff was placed in a standing room only holding cell. While in the cell, he asked for a doctor to treat

his dislocated shoulder and for pictures to be taken of his injuries, but Nurse Moore denied Plaintiff's request. After some

time had passed, Doctor Sue arrived and found several injuries on Plaintiff's body after conducting a visual examination. As a

result, Doctor Sue ordered Nurse Moore to document Plaintiff's injuries on a CDC Form 7219. Plaintiff was escorted back to the

general population at approximately 4:15 p.m. Plaintiff filed several 602 inmate appeals, but he claims they were screened out. After filing more 602 appeals, Plaintiff claims

that he received a retaliatory CDC 115 write-up on April 5, 2006. Plaintiff alleges he eventually exhausted his administrative remedies with respect to these claims. He seeks monetary

compensation and injunctive relief for his physical and emotional injuries. DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity. § 1915A(a).

See 28 U.S.C.

It its review, the court must identify cognizable

claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. § 1915A(b)(1),(2). construed. See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, To state a claim under 42 U.S.C. § 1983, a

699 (9th Cir. 1988).

plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. 487 U.S. 42, 48 (1988). A supervisor may be liable under § 1983 upon a showing of personal involvement in the constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San See West v. Atkins,

Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally "is only liable for

constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." F.2d 1040, 1045 (9th Cir. 1989). Taylor v. List, 880

This includes evidence that a

supervisor implemented "a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Redman, 942 F.2d at 1446;

see Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001). 4

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II.

Plaintiff's Claims A. Use of Excessive Force

A prisoner has the right to be free from cruel and unusual punishment, including physical abuse by guards. Whenever prison

officials stand accused of using excessive physical force in violation of the Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers, 475 U.S. 312, 317 (1986)). Based on the allegations motioned above, the Court is unable to say that Plaintiff can prove no set of facts which would entitle him to relief in support of his claim of the malicious and sadistic use of force. B. Accordingly, the Court finds this claim cognizable.

Retaliation

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a

state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th To prove retaliation, a plaintiff

Cir. 2005) (footnote omitted).

must show that the defendants took adverse action against him or her that "would chill or silence a person of ordinary firmness from future First Amendment activities." White v. Lee, 227 F.3d 1214,

1228 (9th Cir. 2000) (citing Mendocino Envtl. Ctr. v. Mendocino 5

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County, 192 F.3d 1283, 1300 (9th Cir. 1999)). First, Plaintiff alleges that Defendants retaliated against him for filing inmate grievances. Specifically, Plaintiff argues

that a retaliatory motive can be inferred against Defendants because after he filed inmate grievances relating to the alleged excessive force incident, he was "denied timely and adequate medical treatment for his injuries sustained on March 23, 2006"1 and also "denied a mattress to sleep on for over a month and a half." (Compl. at 8.) Even if Plaintiff experienced delays in

care that he attributed to Defendants, these delays would not dissuade a person of reasonable firmness from exercising his or her right to free speech by filing inmate grievances. Plaintiff fails to state a cognizable claim. Plaintiff also claims that his transfer from SVSP to HDSP was the result of retaliation by Defendants for Plaintiff's filing inmate grievances. (Compl. at 9.) Although prison officials are Consequently,

invested with broad discretion to handle transfers of prisoners, they may not retaliate against inmates for the exercise of their First Amendment rights. However, a retaliation claim is not stated

where the prisoner does not allege that the defendants' actions caused him some injury, Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000 ), or, in the case of alleged retaliatory transfer, if the decision may be upheld on a constitutionally valid basis, Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984).

Plaintiff does not allege a claim of deliberate indifference to his medical needs stemming from the March 23, 2006 incident. Nor does he allege that he has exhausted such a claim through the prison administrative appeals process. 6

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Here, Plaintiff alleges that after he filed inmate grievances, he was transferred to a prison "500 miles away from his home, family and loved ones." (Compl. at 9.) However, his allegation

that the transfer occurred after the grievances were filed does not, without more, establish retaliation; rather, Plaintiff must allege a nexus between the two. See Huskey v. City of San Jose,

204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., "after this, therefore because of this"). Here, Plaintiff does not allege While Plaintiff

any nexus between his grievances and the transfer.

claims that prison officials transferred him to HDSP without a legitimate administrative purpose, there is no indication that prison officials would not have transferred Plaintiff even if he had not filed the inmate grievances. See Sher, 739 F.2d at 82 (no

retaliatory transfer claim stated where administrative reasons relied on by defendants would have caused them to transfer prisoner whether or not they also entertained thoughts of retaliation). Accordingly, Plaintiff's retaliation claim based on retaliatory transfer to HDSP is DISMISSED with leave to amend. He may file an

amendment to the complaint to allege that the transfer was in retaliation for the exercise of his constitutional rights. In his

amendment to the complaint, Plaintiff must also link specific Defendants to his claim by explaining what that Defendant did that caused a violation of Plaintiff's constitutional rights. Leer v.

Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on an individual defendant under section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right).

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III. Defendants A. Named Defendants

Plaintiff has named and directly linked to his allegations of excessive force the following named Defendants: SVSP Sergeant

Kircher as well as SVSP Correctional Officers J. Rodriguez, E. Camarena, J. Parra and D. Vega. Accordingly, the Court will order

service of the complaint on these Defendants. B. Doe Defendants

Plaintiff identifies "several other unidentified guards" or Doe Defendants whose names he intends to learn through discovery. The use of Doe Defendants is not favored in the Ninth Circuit. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, where the identity of alleged defendants cannot be known prior to the filing of a complaint the plaintiff should be given an opportunity through discovery to identify them. Id. Failure to See

afford the plaintiff such an opportunity is error. v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). claims against the Doe Defendants are DISMISSED.

See Wakefield Accordingly, the

Should Plaintiff

learn the identities of additional persons who violated his rights, he may move to file an amended complaint to add them as named defendants. See Brass v. County of Los Angeles, 328 F.3d 1192,

1195-98 (9th Cir. 2003). CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff has adequately alleged a cognizable Eighth

Amendment claim against Defendants Kircher, Rodriguez, Camarena, Parra and Vega. 8

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2.

Plaintiff's retaliation claim based on retaliatory

transfer to HDSP is DISMISSED WITH LEAVE TO AMEND as indicated above. Within thirty (30) days of the date of this Order Plaintiff

may file an amended retaliation claim (Plaintiff shall resubmit only that claim and not the entire complaint) as set forth above in Section II(B) of this Order. He must clearly label the document an

"Amendment to the Complaint," and write in the case number for this action. The failure to do so within the thirty-day deadline will

result in the dismissal of Plaintiff's retaliation claim based on retaliatory transfer to HDSP. His remaining retaliation claim based on delays in care is DISMISSED WITH PREJUDICE. 3. The claims against the Doe Defendants are DISMISSED

WITHOUT PREJUDICE. 4. The Clerk of the Court shall mail a Notice of Lawsuit and

Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1) and a copy of this Order to SVSP Sergeant Kircher and SVSP Correctional Officers J. Rodriguez, E. Camarena, J. Parra and D. Vega. The Clerk of the Court shall also mail a

copy of the complaint and a copy of this Order to the State Attorney General's Office in San Francisco. Additionally, the

Clerk shall mail a copy of this Order to Plaintiff. 5. Defendants are cautioned that Rule 4 of the Federal Rules

of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4,

if Defendants, after being notified of this action and asked by the 9

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Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will

proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required Defendants are asked

if formal service of summons is necessary.)

to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the

date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later. 6. Defendants shall answer the complaint in accordance with The following briefing

the Federal Rules of Civil Procedure.

schedule shall govern dispositive motions in this action: a. No later than ninety (90) days from the date their

answer is due, Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by

adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendants are of the

opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment 10

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motion is due.

All papers filed with the Court shall be promptly

served on Plaintiff. b. Plaintiff's opposition to the dispositive motion

shall be filed with the Court and served on Defendants no later than sixty (60) days after the date on which Defendants' motion is filed. The Ninth Circuit has held that the following notice should

be given to pro se plaintiffs facing a summary judgment motion: The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element 11

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of his claim).

Plaintiff is cautioned that because he bears the

burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendants' dispositive motion. Such evidence

may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment

simply by repeating the allegations of his complaint. c. If Defendants wish to file a reply brief, they shall

do so no later than thirty (30) days after the date Plaintiff's opposition is filed. d. The motion shall be deemed submitted as of the date No hearing will be held on the motion

the reply brief is due.

unless the Court so orders at a later date. 7. Discovery may be taken in this action in accordance with Leave of the Court pursuant

the Federal Rules of Civil Procedure.

to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison. 8. All communications by Plaintiff with the Court must be

served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel. 9. It is Plaintiff's responsibility to prosecute this case.

Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion 10. Extensions of time are not favored, though reasonable Any motion for an extension of time 12

extensions will be granted.

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must be filed no later than fifteen (15) days prior to the deadline sought to be extended. IT IS SO ORDERED. DATED: 5/21/08 CLAUDIA WILKEN United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THOMAS RAY WOODSON,

4 Plaintiff, 5 v. 6 J. RODRIGUEZ et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Case Number: CV07-04925 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 21, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Thomas Ray Woodson P-76095 "C" Facility, Calipatria State Prison P.O. Box 5001 Calipatria, CA 92253 Dated: May 21, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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