Hairston v. Salazar

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN TYRONE IZAL HAIRSTON, Case No.: 22-cv-1800-MMA (KSC) CDCR No. BF-2040, 12 ORDER: (1) SCREENING Plaintiff, 13 AMENDED COMPAINT PURSUANT vs. TO 28 U.S.C. §§ 1915(e)(2) AND 14 1915A(b); AND (2) DIRECTING U.S.

15 MARSHAL TO EFFECT SERVICE J. SALAZAR, N. RODRIGUEZ, J. OF AMENDED COMPLAINT AND 16 AVILES, SUMMONS PURSUANT TO 28 17 Defendants. U.S.C. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 18 19 [Doc. No. 5]

20 21 22 Plaintiff Kevin Tyrone Izal Hairston (“Hairston” or “Plaintiff”) proceeding pro se 23 and currently housed at California State Prison, Sacramento (“SAC”), filed a civil rights 24 action pursuant to 42 U.S.C. § 1983 on November 14, 2022. See Doc. No. 1 (“Compl.”). 25 Hairston did not prepay the civil filing fee and did not file a Motion to Proceed in Forma 26 Pauperis (“IFP”), and so the Court dismissed this case without prejudice and gave 27 Hairston until January 13, 2023 to either pay the civil filing fee or file an IFP motion. 28 See Doc. No. 2. 1 On December 12, 2022, Hairston filed an IFP motion, see Doc. No. 3, which the 2 Court granted on February 2, 2023, see Doc. No. 4. The Court also screened his 3 Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) and found 4 that Hairston had stated an Eighth Amendment excessive force claim against Defendants 5 Salazar, Rodriguez, and Doe, but had failed to state a First Amendment retaliation claim 6 against them. Id. The Court explained to Hairston that he could choose to either proceed 7 with his Eighth Amendment claim against Defendants Salazar, Rodriguez, and Doe only, 8 or he could file a First Amended Complaint that cured the pleading deficiencies outlined 9 in the Court’s February 2, 2023 dismissal Order. Id. Hairston was advised that any 10 amended pleading would supersede his original Complaint and any Defendants not 11 named and any claims not re-alleged would be considered waived. Id. On February 13, 12 2023, Hairston filed a First Amended Complaint. See Doc. No. 5 (“FAC”). 13 I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 14 A. Standard of Review 15 As with his original Complaint, because Hairston is a prisoner and is proceeding 16 IFP, the Court must conduct a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) 17 and § 1915A(b) which require the Court to sua sponte dismiss a prisoner’s IFP complaint, 18 or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 19 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 20 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 21 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The standard for determining 22 whether a plaintiff has failed to state a claim upon which relief can be granted under 23 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard 24 for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see 25 also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening 26 pursuant to § 1915A “incorporates the familiar standard applied in the context of failure 27 to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires 28 a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief 1 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 2 quotation marks omitted); Wilhelm, 680 F.3d at 1121. “The purpose of [screening] is ‘to 3 ensure that the targets of frivolous or malicious suits need not bear the expense of 4 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation 5 omitted). 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or “unadorned, the 9 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 10 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 11 “Section 1983 creates a private right of action against individuals who, acting 12 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 13 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff 14 must show both (1) deprivation of a right secured by the Constitution and laws of the 15 United States, and (2) that the deprivation was committed by a person acting under color 16 of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 17 B. Factual Allegations 18 Hairston alleges that on or about June 21, 2022, he was involved in an altercation 19 with Correctional Officer J. Williams. FAC at 4. After the altercation, Hairston alleges 20 Defendants Salazar and Rodriguez held him down while Defendant Ailes kicked and 21 punched him numerous times while he was “completely defenseless.” Id. Defendant 22 Salazar “ran into the area, jumped over a desk and landed on top of Plaintiff.” Id. The 23 Defendants also hit Hairston with their batons repeatedly while Hairston’s hands were 24 behind his back, and Rodriguez and Salazar “deliver[ed] knee blows to Plaintiff’s body 25 and back area[].” Id. 26 C. Discussion 27 As currently pleaded, the Court finds Hairston’s Amended Complaint alleges a 28 plausible excessive force claim against Defendants Salazar, Rodriguez, and Ailes 1 sufficient to survive the “low threshold” set for sua sponte screening as required by 28 2 U.S.C. § 1915(e)(2) and § 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 3 678. Unnecessary and wanton infliction of pain violates the Cruel and Unusual 4 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 5 (1992). In the context of prison officials who are alleged to have used excessive physical 6 force in violation of the Eighth Amendment, “the core judicial inquiry is . . . whether 7 force was applied in a good-faith effort to maintain or restore discipline, or maliciously 8 and sadistically to cause harm.” Id. at 6–7; Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per 9 curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted); see also 10 Carrasco v. Cababe, No. 1:19-cv-00724-LJO-JDP, 2019 WL 6170118, at *2 (E.D. Cal. 11 Nov. 20, 2019) (finding allegations that defendants beat plaintiff without justification 12 while he was restrained sufficient to state an excessive force claim); Lees v. Singsong, 13 No. 19-cv-01603-HSG, 2021 WL 1925728, at *2 (N.D. Cal. 2021) (same). Because 14 Hairston alleges Salazar, Rodriguez, and Ailes kicked, punched, and hit him with batons 15 while he was being held down, he has sufficiently alleged those Defendants acted 16 “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 5. 17 II. CONCLUSION AND ORDER 18 Based on the foregoing, the Court: 19 1) DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s Amended 20 Complaint (Doc. No. 5) and forward it to Plaintiff along with a blank U.S. Marshal Form 21 285 for Defendants Salazar, Rodriguez, and Ailes. In addition, the Clerk will provide 22 Plaintiff with a certified copy of this Order, a certified copy of her Amended Complaint, 23 and the summons so that she may serve these Defendants. Upon receipt of this “IFP 24 Package,” Plaintiff must complete the USM Form 285s as completely and accurately as 25 possible, include an address where each Defendant may be found and/or subject to 26 service, and return them to the United States Marshal according to the instructions the 27 Clerk provides in the letter accompanying her IFP package. 28 2) ORDERS the U.S. Marshal to serve a copy of the Amended Complaint and 1 summons upon Defendants Salazar, Rodriguez, and Ailes as directed by Plaintiff on the 2 USM Form 285s provided to her, and file executed waivers of personal service upon each 3 Defendant with the Clerk of Court as soon as possible after their return. Should any 4 Defendant fail to return the U.S. Marshal’s request for waiver of personal service, the 5 U.S. Marshal shall instead file the completed Form USM 285 Process Receipt and Return 6 with the Clerk of Court, include the date the summons, Amended Complaint, and request 7 for waiver was mailed to that Defendant, and note that service upon that party remains 8 unexecuted. All costs of U.S. Marshal service will be advanced by the United States; 9 however, if a Defendant located within the United States fails, without good cause, to 10 sign and return the waiver requested by the Marshal on behalf of Plaintiff, the Court will 11 impose upon the Defendant any expenses later incurred in making personal service. See 12 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2). 13 3) ORDERS Defendants Salazar, Rodriguez, and Ailes, once served, to reply 14 to Plaintiff’s Amended Complaint, and any subsequent pleading Plaintiff may file in this 15 matter in which they are named as parties, within the time provided by the applicable 16 provisions of Federal Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. 17 § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 18 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 19 facility under section 1983,” once the Court has conducted its sua sponte screening 20 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 21 determination based on the face on the pleading alone that Plaintiff has a “reasonable 22 opportunity to prevail on the merits,” defendant is required to respond). 23 4) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 24 serve upon Defendants Salazar, Rodriguez, and Ailes, or if appearance has been entered 25 by counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other 26 document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). 27 Plaintiff must include with every original document he seeks to file with the Clerk of the 28 Court, a certificate stating the manner in which a true and correct copy of that document 1 || was served on Defendants or their counsel, and the date of that service. See S.D. Cal. 2 CivLR 5.2. 3 IT IS SO ORDERED. 4 Dated: February 22, 2023 5 Mikel MM - (ills 6 HON. MICHAEL M. ANELLO 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28