Herrera-Ramos v. Thich

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOSE HERRERA-RAMOS, 11 Case No. 25-cv-01366 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING 13 v. DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 NOTICE REGARDING SUCH JOHN THICH, et al., MOTION; INSTRUCTIONS TO 15 CLERK Defendants. 16 (Docket No. 11) 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against correctional staff and the warden at Salinas Valley State Prison 20 (“SVSP”), where he was previously confined. Dkt. No. 1 at 9. On July 15, 2025, the 21 Court screened the complaint and dismissed it with leave to amend deficient claims. Dkt. 22 No. 10. Plaintiff was advised that failure to file an amended complaint would result in the 23 dismissal of the deficient claims and the matter would proceed on the cognizable claims. 24 Id. at 7. 25 Plaintiff has filed a response, stating his desire to proceed with the cognizable 26 claims and for the deficient claims to be dismissed without prejudice. Dkt. No. 11. 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, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, 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, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 In the screening order, the Court found the following cognizable claims: 16 1. Claim One: First Amendment and Eighth Amendment 17 Violations (rights to be free of retaliation and use of unnecessary force) 18 Plaintiff claims that on or about December 16, 2022, upon his arrival 19 at SVSP-Facility “B,” Defendant Lt. Erik Beam approached him and told 20 him that “what happen to [him] at California City Facility was nothing compare[d] to what him and Defendant Thich… could have happen to 21 [him], if [he] didn’t work for them.” Dkt. No. 1 ¶ 10. Plaintiff states that 22 while at California City Correctional Facility, he was jumped and assaulted 10-25 times between November 2021 and March 2022, for “refusing to 23 bring drugs at visit.” Id. ¶ 11. Then on December 27, 2022, Defendants Y. De Leon and Euskeda pulled Plaintiff from his cell and escorted him to 24 Building 1 rotunda, where Defendant Erik Beam, John Thich, and Paul 25 Estrada were waiting. Id. ¶ 12. Then Defendant Estrada punched Plaintiff in the stomach, Defendant Beam body slammed him to the floor, and 26 Defendant Thich stepped on his head “with severe extreme strength.” Id. his genital area. Id. Defendants Estrada and De Leon used their feet to 1 “step on Plaintiff lifting his head.” Id. ¶ 13. Defendant Beam squatted 2 down and whispered to Plaintiff, “I’m hearing you[’re] not playing nice with my inmate crew, who the f*ck do you think you are to try to get rid of 3 my informant.” Id. Defendant Beam punched Plaintiff in the face, breaking his nose. Id. Defendant Thich told Plaintiff, “This was just a 4 friendly warning bitch – know your place.” Id. 5 Plaintiff was thrown back into his cell with no medical attention and 6 not let out of his cell for 6 days, denying him 18 consecutive meals. Id. ¶ 7 14. He had a cut in his head, broken nose, bruised ribs and stomach, black eye, and cuts; he was in severe pain for over a month. Id. ¶ 15. 8 Plaintiff states that when he and his girlfriend attempted to report the 9 incident, Defendants Beam and Thich harassed and threatened them. Id. ¶ 10 16. Plaintiff claims Defendants also allowed 3 inmates to beat him. Id. ¶ 17. Plaintiff claims that he feared to use or attempt to use the grievance 11 process or to make a verbal complaint. Id. ¶ 18. 12 These allegations are sufficient to state a claim for excessive force 13 against Defendants Estrada, Beam, Thich, and De Leon, on December 27, 2022. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 14 15 The allegations are also sufficient to state a retaliation claim. “Within the prison context, a viable claim of First Amendment retaliation 16 entails five basic elements: (1) An assertion that a state actor took some 17 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 18 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 19 (9th Cir. 2005) (footnote omitted). Plaintiff alleges that Defendants Beam 20 and Thich harassed and threatened him when he attempted to report the excessive force incident which then chilled the exercise of his First 21 Amendment right, and such conduct by Defendants clearly did not reasonably advance a legitimate correctional goal. 22 23 [¶]…[¶] 24 3. Claim Three: Fourteenth Amendment and Eighth Amendment 25 Violations (retaliation and use of unnecessary force) 26 Plaintiff claims that in June 2024, Defendants allowed inmates to “jump” Plaintiff who run the yard.” Dkt. No. 1 ¶ 24. Plaintiff told Defendant Galdillo that 1 he feared for his safety and submitted a grievance as an emergency to the appeals 2 office; it was never processed or returned. Id. ¶ 25. 3 Liberally construed, Plaintiff states a failure to protect claim against Defendants Thich and De La Torre based on the attack by inmates in June 4 2024. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). 5 [¶]…[¶] 6 7 4. Claim Four: First Amendment and Eighth Amendment violations (retaliation, cruel and unusual punishment, use of 8 unnecessary force) 9 In support of this claim, Plaintiff alleges that he continued to fear for 10 his life as he was aware that 3 inmates who had been experiencing the same things had been killed in Facility B in the last 5 months. Dkt. No. 1 ¶ 26. 11 In September 2024, his girlfriend contacted Internal Affairs and reported 12 the ongoing threats, beatings, and intimidation which were aimed at pressuring Plaintiff’s girlfriend to agree to bring drugs “via visiting,” which 13 they refused to do. Id. At the end of the month, Plaintiff again reported the ongoing issues to the warden’s office, appeals coordinator, and ISU Sgt. 14 Gonzalez. Id. ¶ 27. 15 On August 25, 2024, after Defendants Thich and other defendants 16 learned that Plaintiff’s claims were being investigated, Defendant Thich 17 and Zava falsified a “1030,” claiming to have received confidential information that Plaintiff was responsible for attempting to introduce a 18 controlled substance into the Institution. Id. ¶ 28. The 1030 also stated that due to the situation, Plaintiff’s safety would be in 19 jeopardy if he stayed at SVSP. Id. 20 Plaintiff was being housed in ad-seg, but was escorted by John Does 21 1-3, Defendants Thich, [Euskeda], and Zava. Id. ¶ 29. Plaintiff was reminded “that it was easier for him to be found commit suicide if he open 22 his mouth.” Id. Plaintiff was punched hard and knocked out by an 23 unidentified assailant. Id. Defendants Thich and Zava kicked him into unconsciousness. Id. Plaintiff reported this incident to Sgt. Gonzalez who 24 merely laughed. Id. ¶ 30. However, another sergeant had Plaintiff 25 transferred to Soledad pending transfer to RJD for his safety. Id. 26 The allegations are sufficient to state another excessive force claim 1 Dkt. No. 10 at 2-3, 4-6. In accordance with Plaintiff’s notice, all other claims shall be 2 dismissed without prejudice from the complaint. Dkt. No. 11. 3 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows: 6 1. This matter is proceeding on the following cognizable claims: (1) excessive 7 force claim against Defendants Estrada, Beam, Thich, and De Leon for the December 27, 8 2022 incident; (2) retaliation claim against Defendants Beam and Thich; (3) excessive 9 force claim against Defendants Estrada, Aldama, and Thich for the April 2024 incident; (4) 10 failure to protect claim against Defendants Thich and De La Torre for the inmate attack in 11 June 2024; and (5) excessive force claim against Defendants Thich and Zava following the 12 false 1030 in August 2024. 13 All other claims are DISMISSED without prejudice. The Clerk shall terminate all 14 other defendants from this action as there remain no claims against them. 15 2. The following SVSP Defendants shall be served at the CDCR: 16 a. Correctional Officer Paul Estrada 17 b. Captain Erik Beam 18 c. Correctional Lieutenant John Thich 19 d. Correctional Officer Y. De Leon 20 e. Correctional Officer Aldama (B-Yard Officer) 21 f. Correctional Officer De La Torre (Building 1 and 5 Officer) 22 g. Correctional Sergeant D. Zava 23 3. Service on the listed defendant(s) shall proceed under the California 24 Department of Corrections and Rehabilitation’s (CDCR) e-service program for civil rights 25 cases from prisoners in CDCR custody. In accordance with the program, the clerk is 26 directed to serve on CDCR via email the following documents: the operative complaint 1 this order of service, and a CDCR Report of E-Service Waiver form. The clerk also shall 2 serve a copy of this order on the plaintiff. 3 4. No later than 40 days after service of this order via email on CDCR, CDCR 4 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 5 which defendant(s) listed in this order will be waiving service of process without the need 6 for service by the United States Marshal Service (USMS) and which defendant(s) decline 7 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 8 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 9 days, shall file with the court a waiver of service of process for the defendant(s) who are 10 waiving service. 11 5. Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall 12 prepare for each defendant who has not waived service according to the CDCR Report of 13 E-Service Waiver a USM-205 Form. The clerk shall provide to the USMS the completed 14 USM-205 forms and copies of this order, the summons and the operative complaint for 15 service upon each defendant who has not waived service. The clerk also shall provide to 16 the USMS a copy of the CDCR Report of E-Service Waiver. 17 6. No later than ninety-one (91) days from the date this order is filed, 18 Defendants shall file a motion for summary judgment or other dispositive motion with 19 respect to the claims in the complaint found to be cognizable above. 20 a. Any motion for summary judgment shall be supported by adequate 21 factual documentation and shall conform in all respects to Rule 56 of the Federal 22 Rules of Civil Procedure. Defendants are advised that summary judgment cannot 23 be granted, nor qualified immunity found, if material facts are in dispute. If any 24 Defendant is of the opinion that this case cannot be resolved by summary judgment, 25 he shall so inform the Court prior to the date the summary judgment motion is due. 26 b. In the event Defendants file a motion for summary judgment, the 1 appropriate warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 2 1998) (en banc). See Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 3 7. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 4 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 5 motion is filed. 6 8. Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil 7 Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing 8 summary judgment must come forward with evidence showing triable issues of material 9 fact on every essential element of his claim). Plaintiff is cautioned that failure to file an 10 opposition to Defendants’ motion for summary judgment may be deemed to be a consent 11 by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff 12 without a trial. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); 13 Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994). 14 9. Defendants shall file a reply brief no later than fourteen (14) days after 15 Plaintiff’s opposition is filed. 16 10. The motion shall be deemed submitted as of the date the reply brief is due. 17 No hearing will be held on the motion unless the Court so orders at a later date. 18 11. All communications by the Plaintiff with the Court must be served on 19 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 20 copy of the document to Defendants or Defendants’ counsel. 21 12. Discovery may be taken in accordance with the Federal Rules of Civil 22 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 23 Rule 16-1 is required before the parties may conduct discovery. 24 13. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 25 court informed of any change of address and must comply with the court’s orders in a 26 timely fashion. Failure to do so may result in the dismissal of this action for failure to 1 14. Extensions of time must be filed no later than the deadline sought to be 2 || extended and must be accompanied by a showing of good cause. 3 IT IS SO ORDERED. 4 || Dated: August 25, 2025 Aliinfhacncan BETH LABSON FREEMAN 5 United States District Judge 6 7 8 9 10 11 12 13 14 © 15 16 18 19 20 21 22 23 24 95 Order of Partial Dism & Service PRO-SE\BLF\CR.25\01366Herrera-Ramos_svc 26 27