1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHN A. SALCIDA, 11 Case No. 5:21-cv-09976 EJD (PR) Plaintiff, 12 ORDER DISMISSING NON- COGNIZABLE CLAIMS; OF 13 v. SERVICE; DIRECTING DEFENDANTS TO FILE 14 DISPOSITIVE MOTION OR JOHN THICH, et al., NOTICE REGARDING SUCH 15 MOTION; INSTRUCTIONS TO Defendants. CLERK 16 17

18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42

against prison employees at Salinas Valley State Prison (“SVSP”) where he 20 was formerly incarcerated.1 Dkt. No. 1. Plaintiff has recently filed a notice of addendum, 21 identifying “John Does 1 to 10” in the complaint. Dkt. No. 10. The Court accepts this 22 filing as a supplemental to the complaint and will proceed with an initial screening. 23 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate 24 order. 25 /// 26 /// 27 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 10 To state a claim under

, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins,

(1988). 14 B. Plaintiff’s Claims 15 Plaintiff filed a complaint naming numerous Defendants who work at SVSP, 16 alleging they violated his state and federal rights based on a series of retaliatory actions 17 from June through October 2021. Dkt. No. 1-1 at 3-10. The named Defendants are as 18 follows: Warden M. B. Atchley, Officer L. Martin, Complex II Associate Warden C. 19 Medina, Officer P. Estrada, Officer F. Estrada, Associate Warden R. Mojica, Sgt. R. Day 20 of ad-seg, Chief Deputy Warden T. Lemon, and John Doe 1 to 10. Dkt. No. 1 at 2. In the 21 supplemtanl, he asks that the following Defendants replace John Doe 1 to 10 in the 22 complaint: E. Beam, M. B. Atchley, L. Ruiz, R. Mojica, T. Lemon, and P. Estrada. Dkt. 23 No. 10 at 2. Plaintiff lists four claims. 24 Under claim one, Plaintiff alleges retaliation for exercising his freedom of speech 25 and right to file a grievance, citing “state [and] federal 1st Amendment [and] 4th 26 Amendment,” against Defendants L. Martin, J. Thich, V. Lomeli, and John Doe 1 to 10. 27 Dkt. No. 1-1 at 3. Plaintiff alleges that retaliation began shortly after he was identified as a 1 behalf, Plaintiff’s cell was searched 7-10 times by Defendants L. Martin and John Does 1 2 to 10, by order of Defendant Sgt. Thich.

When Plaintiff complained of the excessive 3 searches on June 21, 2021, Defendant Thich told him that it was “nice to know staff was 4 doing their job as order[ed]” and that if Plaintiff wanted the retaliation to stop, he would 5 have to “check” his cellie or “‘f--k her up.’” Id. at 4. Later that month, Plaintiff spoke to 6 Defendant Lomeli, the facility captain, and informed him that Defendants Thich and 7 Martin were trying to “get [him] to take off on [his] cellie to get her to stop utilizing the 8 602 process.” Id. Plaintiff alleges that his cell was again searched more than 12 times in 9 July 2021. Id. Plaintiff again spoke with Defendant Thich, who told Plaintiff that he 10 would get “what snitches get.” Id. Plaintiff then filed a grievance regarding the retaliation. 11 Id. 12 Under claim two, Plaintiff asserts violations of his First and Eighth Amendment 13 rights, as well as the “ADA Title II, section 504,” based on retaliation and use of excessive 14 force against Defendants Thich, E. Beam. V. Lomeli, T. Lemon, M. B. Atchley, C. 15 Medina, L. Martin, P. Estrada, R. Mojica, and John Doe 1 to 10. Dkt. No. 1-1 at 5. 16 Plaintiff claims that during August 2021, his cell was searched 12 times. Id. On August 17 11, 2021, Plaintiff claims Defendant Beam sent Defendants Thich, Martin, Estrada, and 18 John Doe 1 to 10 to trash his cell in retaliation for Plaintiff’s involvement in his cellmate’s 19 grievance. Id. Defendants took and destroyed his property, valued at about $1,200, which 20 included his “ADA glasses.” Id. Plaintiff claims Defendants Thich and Martin told 21 Plaintiff that he should stop snitching and “f--k-up” his cellmate. Id. Plaintiff claims that 22 Defendants Estrada and Martin threw him into a holding cell, causing his face to hit the 23 wall and his nose to bleed; Defendant Thich then kicked Plaintiff in the back. Id. Plaintiff 24 claims Defendant Thich told Defendant Martin to report Plaintiff as suicidal and keep him 25 in the cage for 6 to 8 hours without medical attention. Id. at 6. Later, Defendant Beam 26 informed him that for being a snitch, they had searched his cell and removed a $200 stove 27 because “snitches don’t get fed.” Id. On August 12, 2021, Plaintiff reported the retaliatory 1 that it was his fault for being a witness and they were not getting involved. Id. Twenty 2 minutes later, Plaintiff’s cell was trashed by Defendants Garcia, at the order of Defendant 3 Beam, who again told Plaintiff to “stop snitching or he would regret it.” Id. Plaintiff 4 claims that on August 16, 2021, his cell got searched again, and Defendants Thich and 5 Estrada “smack[ed]” him across the face. Id. at 6-7. Plaintiff claims that on August 18, 6 2021, Defendants Martin, Estrada, and Beam punched him and placed him in ad-seg in 7 retaliation and once again took what little property he had left. Id. at 7. Plaintiff wrote 8 several times to Defendants Lemon, Atchley, Mojica, and Medina to intervene and stop the 9 retaliation “to no avail.” Id. When Plaintiff “went to committee” and reported “everything 10 that was going on” to Defendant Lemon, he was told to stop snitching. Id. Plaintiff was 11 released to Facility A after he reported having safety concerns against specific inmates and 12 staff; he also alleged that Defendant Thich was trying to sell cell-phones. Id. Plaintiff 13 claims Defendants told him to “shut up if you don’t want to be found dead.” Id. 14 Under claim three, Plaintiff again claims violations under the First and Eighth 15 Amendments of his right to be free from retaliation and for the failure to protect against 16 Defendants Estrada, Atchley, Lemon, Medina, Mojica, and John Doe 1 to 10. Id. at 8. 17 Plaintiff claims that in September 2021, he reported to ICC and Defendant Lemon that he 18 had safety concerns in Facility A involving inmates and staff, and that if he was released, 19 he would be in danger. Id. Plaintiff received an RVR (Rules Violation Report) for 20 refusing to house in Facility A. Id. He claims that when he came out of his cell for a 21 medical appointment, he was thrown into a van by force, scraping his knees and arms and 22 hitting his face in the window. Id. He informed the Captain during Unit Classification in 23 Facility A that he had safety concerns as staff had already threatened to have inmates beat 24 him up for being a snitch. Id. Plaintiff claims he wrote to Defendants Atchley, Lemon and 25 Mojica that his life had been threatened, but they refused to investigate or properly process 26 his grievance. Id. at 8-9. Plaintiff was then assaulted later in September by the inmate 27 clerk who works for Defendant Estrada; the inmate informed Plaintiff that staff had 1 Plaintiff was placed in ad-seg and written-up as the aggressor. Id. Plaintiff claims he was 2 threatened by Defendants to keep his mouth shut about the cell-phone sales and to stop 3 filing grievances if he did not want to die in ad-seg. Id. Plaintiff claims the threats worked 4 and he did not pursue a grievance. Id. 5 Lastly, under claim four, Plaintiff claims violations of his First and Eighth 6 Amendment rights for retaliation and the use of unnecessary force against Defendants Day, 7 Mojica, and Atchley. Id. at 9. Plaintiff claims that on or about October 14, 2021, he was 8 interviewed by Defendant Solis about his grievance against Defendants Lomeli and 9 Medina for their actions on August 12, 2021. Id. After he was escorted from the interview 10 room, Plaintiff claims Defendant Day came out and told him, “You have to be careful with 11 this rat,” and then stomped on his ankle, causing swelling and a cut. Id. at 9-10. Plaintiff 12 reported the incident, which caused more retaliation, including Defendant Day and the 13 property officer destroying his property. Id. at 10. Plaintiff claims that after he finished a 14 video interview with Lt. Gomez and the camera was turned off, Defendant Day smacked 15 him so hard that he fell off the chair. Id. Out of fear that the beatings would get worse, 16 and he might get killed, Plaintiff claims he did not utilize the 602 process. Id. 17 Liberally construed, Plaintiff’s allegations are sufficient to state claims under the 18 First Amendment for retaliation based on the multiple cell searches, placement in ad-seg, 19 and property destruction, and under the Eighth Amendment for the multiple incidences of 20 excessive force between June through October 2021. 21 However, Plaintiff fails to state a claim under the Fourth Amendment for 22 unreasonable searches and seizures under claim one. There is no legitimate subjective 23 expectation of privacy that a prisoner might have in his prison cell and, accordingly, the 24 Fourth Amendment proscription against unreasonable searches does not apply within the 25 confines of the prison cell. See Hudson v. Palmer,

(1984). The 26 recognition of privacy rights for prisoners in their individual cells simply cannot be 27 reconciled with the concept of incarceration and the needs and objectives of penal 1 for maliciously motivated searches or calculated harassment unrelated to prison needs. 2 The Eighth Amendment always stands as a protection against cruel and unusual 3 punishment. See

. Accordingly, Plaintiff has a sufficient remedy for the 4 allegedly malicious cell searches under the Eighth Amendment. 5 Nor has Plaintiff stated sufficient facts to state a claim under the ADA under claim 6 two. Title II of the ADA,

et seq., provides that “no qualified individual 7 with a disability shall, by reason of such disability, be excluded from participation in or be 8 denied the benefits of the services, programs, or activities of a public entity, or be 9 subjected to discrimination by any such entity.”

. Title II protects “a 10 qualified individual with a disability.”

. In the context of the ADA, the 11 term “disability” means: “(A) a physical or mental impairment that substantially limits one 12 or more of the major life activities of the person; (B) having a record of such an 13 impairment; or (C) being regarded as having such an impairment.”

§ 12102(1). For 14 purposes of § 12102(a), “major life activities include, but are not limited to, caring for 15 oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, 16 lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, 17 communicating, and working.”

(2)(A). Here, Plaintiff’s ADA claim 18 appears to be based solely on the destruction of his ADA glasses. See supra at 3. There is 19 no allegation that Plaintiff has a disability that qualifies under the ADA, or that he was 20 excluded from or denied the benefits of any service, program, or activity of the prison. 21 Accordingly, Plaintiff’s ADA claim is dismissed for failure to state a cognizable claim. 22 /// 23 /// 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows: 26 1. This action shall proceed on the First and Eighth Amendment claims 27 identified above. See supra at 5. The Fourth Amendment and ADA claims are dismissed 1 2. The following defendants at SVSP shall be served: 2 a. M. B. Atchley, Warden 3 b. John Thich, Sergeant 4 c. L. Martin, Correctional Officer 5 d. C. Medina, Complex II Associate Warden 6 e. P. Estrada, Correctional Officer 7 f. F. Estrada, Correctional Officer 8 g. R. Mojica, Associate Warden 9 h. R. Day, Correctional Sgt. Ad-Seg 10 i. T. Lemon, Chief Deputy Warden 11 j. E. Beam, Lieutenant 12 k. Veronica Lomeli, Captain 13 l. L. Ruiz 14 Service on the listed defendant(s) shall proceed under the California Department of 15 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 16 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 17 on CDCR via email the following documents: the operative complaint, and any 18 attachments thereto, Dkt. No. 1, the supplemental, Dkt. No. 10, this order of service, and a 19 CDCR Report of E-Service Waiver form. The clerk also shall serve a copy of this order on 20 the plaintiff. 21 No later than 40 days after service of this order via email on CDCR, CDCR shall 22 provide the court a completed CDCR Report of E-Service Waiver advising the court which 23 defendant(s) listed in this order will be waiving service of process without the need for 24 service by the United States Marshal Service (USMS) and which defendant(s) decline to 25 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 26 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 27 days, shall file with the court a waiver of service of process for the defendant(s) who are 1 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 2 each defendant who has not waived service according to the CDCR Report of E-Service 3 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 4 forms and copies of this order, the summons and the operative complaint for service upon 5 each defendant who has not waived service. The clerk also shall provide to the USMS a 6 copy of the CDCR Report of E-Service Waiver. 7 3. No later than ninety-one (91) days from the date this order is filed, 8 Defendants shall file a motion for summary judgment or other dispositive motion with 9 respect to the claims in the complaint found to be cognizable above. 10 a. Any motion for summary judgment shall be supported by adequate 11 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 12 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If any Defendant is of the 14 opinion that this case cannot be resolved by summary judgment, he shall so inform the 15 Court prior to the date the summary judgment motion is due. 16 b. In the event Defendants file a motion for summary judgment, the 17 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 18 warnings under Rand v. Rowland,

(9th Cir. 1998) (en banc). See 19 Woods v. Carey,

(9th Cir. 2012). 20 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 22 motion is filed. 23 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 24 Celotex Corp. v. Catrett,

(1986) (holding party opposing summary judgment 25 must come forward with evidence showing triable issues of material fact on every essential 26 element of his claim). Plaintiff is cautioned that failure to file an opposition to 27 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 1 |} Ghazali v. Moran,

(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 2 || F.3d 651, 653 (9th Cir. 1994). 3 5. Defendants shall file a reply brief no later than fourteen (14) days after 4 || Plaintiff's opposition is filed. 5 6. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 7. All communications by the Plaintiff with the Court must be served on 8 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 9 || copy of the document to Defendants or Defendants’ counsel. 10 8. Discovery may be taken in accordance with the Federal Rules of Civil 11 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery. 13 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the S 14 || court informed of any change of address and must comply with the court’s orders in a 3 15 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). i 17 10. Extensions of time must be filed no later than the deadline sought to be 18 || extended and must be accompanied by a showing of good cause. 19 IT ISSO ORDERED. 20 || Dated: July 27, 2022 EDWARD J. DAVILA United States District Judge 22 23 24 25 26 27 28