Wimberly v. Cuevas

Background

Craig Ervin Wimberly, a California prisoner incarcerated at San Quentin State Prison, filed this civil-rights action without a lawyer under 42 U.S.C. § 1983. The complaint concerned conditions and events at San Quentin. The caption listed Kathleen Alician, Ralph Diaz, Ron Davis, and Sergeant Cuevas as defendants.

Wimberly alleged that, while working as a porter in the prison visiting room, he saw Sergeant Cuevas remove six “photo ducats” from a photo box. Wimberly reported what he viewed as a theft to Correctional Officer Camacho. He alleged that Cuevas then directed officers not to let him work on his days off, encouraged staff to issue disciplinary write-ups against him, and instructed staff to keep him at work until the end of his shift.

Wimberly also alleged that Cuevas made sexually crude comments to him for about a year, that Cuevas summoned Wimberly’s visitor from a food line to discuss her clothing, that prison employees unsuccessfully attempted to obtain his participation in a Prison Rape Elimination Act investigation, and that the prison’s Investigative Services Unit searched his cell. He further alleged that his inmate grievance received an unsatisfactory response. The complaint requested appointment of counsel.

Screening and legal standards

Because Wimberly was a prisoner seeking relief from government officials, the court reviewed the complaint under 28 U.S.C. § 1915A. That screening law requires the court to identify claims that can proceed and dismiss claims that are frivolous, malicious, fail to state a claim, or seek relief from an immune defendant. The court stated that it would construe Wimberly’s self-represented complaint liberally.

For a claim under § 1983, a plaintiff must allege both a violation of a federal constitutional or statutory right and conduct by a person acting under state law.

Claims against Sergeant Cuevas

The court dismissed the § 1983 claim based on Cuevas’s crude sexual comments. It held that verbal harassment alone, including verbal sexual harassment, does not violate the Constitution. The court granted leave to amend this claim if Wimberly had additional facts showing conduct beyond non-actionable verbal harassment.

The court found that the complaint, liberally construed, stated a cognizable First Amendment retaliation claim against Cuevas. A prison-retaliation claim requires allegations that the defendant took adverse action because of protected conduct, the action chilled the prisoner’s exercise of First Amendment rights, and the action did not reasonably advance a legitimate correctional goal. The court found that Wimberly’s allegations about adverse actions following his complaint about the ducats and his grievance were sufficient at the screening stage.

The court determined that Wimberly did not state a retaliation claim based on the Investigative Services Unit’s cell search. The complaint did not allege facts connecting the search to Wimberly’s protected conduct, showing that the search had a chilling effect, or showing that it lacked a legitimate correctional purpose. The court also found no facts plausibly connecting Cuevas to the search.

Grievance and Prison Rape Elimination Act allegations

The court dismissed the claim concerning the handling of Wimberly’s inmate appeal without leave to amend. It held that California prisoners have no federal constitutional right to a prison grievance or administrative-appeal system, and that an incorrect grievance decision or inadequate handling of an appeal does not violate due process.

The court concluded that Wimberly did not state a claim under the Prison Rape Elimination Act, or for inadequate handling of a complaint under that statute, because the statute had not been found to create a private cause of action.

Claims against the other listed defendants

The court dismissed the claims against the CDCR Secretary, CDCR Director, and prison warden. Wimberly did not allege that these defendants personally did or failed to do anything that violated his constitutional rights. The court explained that § 1983 does not impose liability merely because a supervisor is responsible for an employee or is in charge of the prison or correctional system. Wimberly also did not allege sufficient personal involvement or a causal connection between these defendants and the alleged constitutional violations.

Request for counsel

The court denied Wimberly’s request for appointed counsel. It found no exceptional circumstances because the claims did not appear complex and there did not appear to be a likelihood of success on the merits.

Disposition

The court ordered that the complaint be dismissed with leave to amend because it failed to state a claim other than the retaliation claim against Cuevas. The order required Wimberly to file a complete amended complaint by June 1, 2020, using the case caption and number in the order and labeling the first page “AMENDED COMPLAINT.”