Filed 7/16/14 Harris v. Recek CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

DEVONTE B. HARRIS,
                                                                                           F066213
         Plaintiff and Appellant,
                                                                           (Kings Super. Ct. No. 11C0218)
                   v.

BRIAN RECEK et al.,                                                                      OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter,
Judge.
         Devonte B. Harris, in pro. per., for Plaintiff and Appellant.
         Reily & Jeffery, Janine K. Jeffery and Oren Rosenthal for Defendants and
Respondents.
                                                        -ooOoo-



         *   Before Levy, Acting P.J., Poochigian, J. and Peña, J.
                                    INTRODUCTION
       Plaintiff, a prisoner, filed a civil complaint against several employees of the
California Department of Corrections and Rehabilitation. He maintained several causes
of action arising from allegations that he was denied a single dinner meal, placed on
property restriction for violating prison rules and was made to bear the weight of a 10-
pound security triangle1 for 15 minutes.
       In October 2011, the superior court sustained defendants’ demurrer to plaintiff’s
complaint. The superior court granted leave to amend as to some causes of action, while
denying leave to amend as to other claims.
       Plaintiff filed a second amended complaint against respondents, Sergeant Rasley
and Correctional Officers Mendoza, Rollins, Velasco, Recek, Sanchez, and Capano. The
complaint contained 12 causes of action, and defendants demurred to all of them. This
time, the superior court sustained the demurrer and denied leave to amend as to all causes
of action. Plaintiff appeals from the resultant judgment of dismissal.
       We conclude that the court properly sustained the demurrer as to all causes of
action, including plaintiff’s claim that the confiscation of his legal paperwork violated his
right to access the courts. However, as to the denial of access claim only, we conclude
that leave to amend should have been granted. Therefore, we reverse the judgment as to
the denial of access claim and direct the court to grant leave to amend that claim only.
                                           FACTS
       A. Complaint’s Allegations
       On March 13, 2010, plaintiff complained about “the size and condition” of his
cake dessert. Officer Mendoza then refused to give plaintiff his food tray. Afterwards, as
prison staff were collecting trays and trash, plaintiff held open his food port “to talk to

       1 A security triangle is a “metal triangular bar that weighs around 10 pounds and
has a chain that can be connected to handcuffs to prevent an inmate from” withholding
his or her handcuffs.



                                              2.
supervisory staff about obtaining” his “evening meal.” Mendoza “lied” and said that
plaintiff had refused his food tray. Plaintiff countered that he had, in fact, not refused his
food tray. Sergeant Rasley ordered plaintiff to release the food port, but plaintiff refused.
Plaintiff released the food port “around” an hour later. Plaintiff never received that
night’s meal.
       The next day, Officers Recek and Capano escorted plaintiff to the shower.
Plaintiff was placed in a security triangle for the trip. After plaintiff showered, he was
again placed in the security triangle. The triangle was allowed to “hang freely through
the cuff port of the shower door.” This required plaintiff to support the weight of the
security triangle, causing him “extreme pain.” Plaintiff was in the position for
“approximately 15 minutes.” Officers Rollins, Capano and Sanchez observed plaintiff in
“obvious pain and discomfort.” Neither they, nor Officer Velasco, attempted to “stop this
misconduct.” Rasley had “ordered this use of the security triangle.” Plaintiff eventually
“maneuvered the handcuffs to the front by stepping through them.
       While plaintiff was in the shower, prison staff entered his cell. Officers Recek,
Capano, Rollins and Sanchez took “all” of plaintiff’s “property” out of his cell, including
bedding, laundry, stamps, envelopes, paper, writing instruments, eating utensils and legal
books, magazines and research.
       Plaintiff demanded to talk to the sergeant. An unidentified sergeant “came back
with” Corcoran State Prison operational procedure No. 222.2 That procedure, according
to the complaint, provided that prison officials could only place inmates on certain types
of property restriction when the inmate “cover[s] their cell doors, lights, windows, etc. to
the extent it causes a breach of security” or “persist[s] in disruptive, destructive and


       2  It is unclear if this allegation indicates that the sergeant actually returned with a
physical copy of the operational procedure or simply cited the operational procedure to
plaintiff.



                                               3.
dangerous behaviors and will not respond to orders and warnings to desist.” Plaintiff told
the sergeant that he did not cover his cell at all.
       Plaintiff told Sergeant Rasley he would go back to his cell after his “legal
material[s]” were returned because they were exempt from property restriction. Rasley
agreed to return plaintiff’s legal materials. When plaintiff returned to his cell, “numerous
items related to” the “legal material” were missing, including “appeal responses, medical
and mental health records, notes from legal research … address books, exhibits of CDCR
paperwork and supporting documentary evidence for my criminal appeal and federal
lawsuits.” As a result, plaintiff claims he was unable to consult with his lawyer in a
criminal case. Additionally, plaintiff was “prejudiced at the critical stage of drafting …
discovery requests [sic] which led to inadequate disclosures” in a federal case brought
pursuant to “[section] 1983.”3
       Prison staff also refused to return plaintiff’s “paper, postage and a writing utensil”
because they were not legal materials. Plaintiff borrowed a “writing utensil” from
another inmate so he could draft an appeal and request mental health services. Plaintiff
“endured these conditions” for 10 days.
       Plaintiff alleged that “[a]s a result of these deprivations, I was unable to maintain
personal cleanliness, I was subjected to cold temperatures at night which factored into
sleep deprivation, I was angry, humiliated, embarrassed and worried.”
                                        DISCUSSION
       Plaintiff challenges the court’s ruling on the demurrer in several respects. Plaintiff
claims the meal “deprivation” incident supports a cause of action for negligence. He also
argues that his first five causes of action successfully stated a claim. Those causes of
action are: negligent infliction of emotional distress (first); intentional infliction of


       3   Presumably, section 1983 of title 42 of the United States Code.



                                               4.
emotional distress (second); excessive force/Eighth Amendment violations (third);
“assault and battery” (fourth); negligent failure to stop Officer Recek’s “assault and
battery (fifth). Plaintiff has also challenged the court’s ruling as to the seventh cause of
action, for negligent infliction of pain and suffering resulting from plaintiff’s property
restriction status.4 We will address each in turn.

       A. The Meal “Deprivation” Incident Does not Support a Cause of Action for
          Ordinary Negligence
       First, plaintiff argues that he successfully stated a claim for ordinary negligence.
He contends that defendants caused him to become hungry and that his emotional distress
was directly related to that hunger.
       We conclude plaintiff did not state a claim for ordinary negligence because the
allegedly wrongful conduct at issue in the meal “deprivation” incident was intentional,
not negligent. The complaint alleged that Officer Mendoza “refused” to give plaintiff his
food and that Officer Rollins “acquiesced in this food deprivation.” There is no
allegation that defendants acted negligently rather than intentionally.

              “Negligence is an unintentional tort, a failure to exercise the degree
       of care in a given situation that a reasonable man under similar
       circumstances would exercise to protect others from harm. [Citations.] A
       negligent person has no desire to cause the harm that results from his
       carelessness, [citation], and he must be distinguished from a person guilty
       of willful misconduct, such as assault and battery, who intends to cause
       harm. [Citation.] Willfulness and negligence are contradictory terms.
       [Citations.] If conduct is negligent, it is not willful; if it is willful, it is not
       negligent.” (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869.
       But see generally American Employer’s Ins. Co. v. Smith (1980) 105
       Cal.App.3d 94.)


       4 On appeal, plaintiff does not address his other causes of action and, therefore,
neither do we. (See Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1504 [when plaintiff does not defend a cause of action on appeal from an order sustaining
a demurrer, the propriety of the court’s ruling as to that cause of action is waived].)



                                                5.
       B. First and Second Causes of Action
       Plaintiff next argues his first and second causes of action for negligent and
intentional infliction of emotional distress were viable because “[d]efendants denied
[p]laintiff his dinner causing him hunger.” One element of such claims is “extreme and
outrageous conduct by the defendant ….” (Conley v. Roman Catholic Archbishop (2000)
85 Cal.App.4th 1126, 1133.) “ ‘Conduct to be outrageous must be so extreme as to
exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Ibid.)
       The conduct at issue in the meal “deprivation” incident was the withholding of a
single meal. Even if this conduct could potentially be construed as “improper” or
contrary to prison regulations (see 15 Cal. Code Regs., tit. 15, § 3050, subd. (a)(1)), it
cannot be deemed “ ‘so extreme as to exceed all bounds of that usually tolerated in a
civilized community’ [Citation.]” (Cf. Darting v. Farwell (9th Cir. 2005) 139 Fed.Appx.
847, 847–848.)5 Therefore, the court properly sustained the demurrer as to the first and
second causes of action.
       C. Third Cause of Action
       Plaintiff also argues that his third cause of action for an alleged Eighth
Amendment violation was viable. We disagree.
       An Eighth Amendment claim “ordinarily cannot be predicated upon a de minimis
use of physical force….” (See DeWalt v. Carter (7th Cir. 2000) 224 F.3d 607, 620.)
Consequently, even when the particular use of force was “unjustified,” there may be no
Eighth Amendment violation. (Ibid.) In evaluating these claims, courts consider “the


       5 We may cite this unpublished federal case as persuasive authority. (Nungaray v.
Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, 1501, fn. 2; Kight v. CashCall,
Inc. (2011) 200 Cal.App.4th 1377, 1394, fn. 3; People v. Evans (2011) 200 Cal.App.4th
735, 752, fn. 11; Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1312, fn. 5; Discover
Bank v. Superior Court (2005) 134 Cal.App.4th 886, 892, fn. 2; Hillman v. Britton (1980)
111 Cal.App.3d 810, 816, fn. 2.)



                                              6.
need for an application of force, the relationship between that need and the force applied,
the threat reasonably perceived by the responsible officers, the efforts made to temper the
severity of the force employed, and the extent of the injury suffered by the prisoner….”
(Id. at p. 619.)
       Here, the use of the security triangle restraint for 15 minutes was, at most, a de
minimus use of physical force. The day before, plaintiff had expressly refused to obey an
order from Sergeant Rasley. Given plaintiff’s recent conduct, defendants may have
reasonably concluded that if they moved plaintiff to the shower he might refuse to
produce his handcuffs before, during or after transport. Security triangles are used to
prevent this occurrence. (See fn. 1, ante.) Thus, there is a clear relationship between the
prison’s relevant need (i.e., safe transport of prisoners) and the “force” used (i.e., a
security triangle).
       However, plaintiff apparently contends that the “force” used here went beyond
what was needed. The complaint’s averment on this issue is unclear. It states: “[Officer]
Recek left the heavy metal triangle to hang freely through the cuff port of the shower
door. Being in this compromised position of having to support the weight of the metal
triangle by the link of handcuffs to the back on my wrist caused extreme pain.” !(MtA 8)!
It is not clear whether Recek could have positioned the triangle in a different manner to
alleviate any discomfort.6 And the complaint does not clearly explain how the triangle,
plaintiff and the shower door were oriented. As a result, it is unclear why plaintiff’s
position was more painful than other situations where the triangle is used. But even
assuming Recek could have positioned the triangle in a more comfortable way, we would
still find no Eighth Amendment violation. At most, it appears plaintiff was required to
bear 10 pounds of weight on his wrists for 15 minutes. The apparatus applying the

       6Indeed, plaintiff admits he was able to “maneuver[] the handcuffs to the front by
stepping through them.” !(MtA 8)!



                                              7.
“force” at issue here was designed to promote safety by preventing inmates from
withholding their handcuffs from prison guards. And the complaint alleges that plaintiff
suffered pain during the incident, but raises no other resultant injury. Considering these
factors together, we conclude that the use of “force” alleged here was de minimis (if
anything) and did not violate the Eighth Amendment as a matter of law. (See DeWalt v.
Carter, supra, 224 F.3d at p. 620.) The superior court properly sustained a demurrer to
this cause of action.
       D. Fourth and Fifth Causes of Action
       A prima facie element of a battery claim against a law enforcement officer is the
use of unreasonable force. (See Susag v. City of Lake Forest (2002) 94 Cal.App.4th
1401, 1415; see also Yount v. City of Sacramento (2008) 43 Cal.4th 885 [common law
battery cause of action against police officer requires proof that officer used unreasonable
force].) For the reasons explained in our discussion of the third cause of action, we also
conclude that the face of the complaint demonstrates that Officer Recek did not use
unreasonable force.7
       Plaintiff, having recently disobeyed direct orders from prison staff, was being
transported to and from the showers. Prison staff utilized a security triangle, designed to
prevent plaintiff from refusing to produce his handcuffs. If the staff had detached the
security triangle while plaintiff was showering, they would have had to reattach it
afterwards. At that point, plaintiff might have refused to produce his handcuffs, defeating
the purpose of utilizing the security triangle in the first place. Therefore, we conclude the
facts, as alleged by the complaint, demonstrate that any “force” used was reasonable.
The court properly sustained the demurrer as to the fourth cause of action.

       7  “[A] prima facie element of a battery claim against a police officer is the use of
unreasonable force .…” (Susag v. City of Lake Forest, supra, 94 Cal.App.4th at p. 1415,
italics added; see also Yount v. City of Sacramento, supra, 43 Cal.4th 885 [common law
battery cause of action requires proof that officer used unreasonable force].)



                                             8.
       Because the fifth cause of action was predicated on the other defendants’ alleged
failure to “stop defendant Recek’s assault and battery,” that claim must also fail.
       E. Plaintiff’s Claim Regarding Property Restriction Status
              a. Seventh Cause of Action
       In the fourth heading of the opening brief, plaintiff indicates that he stated a viable
claim in his fifth cause of action. However, the argument that follows discusses the
substance of the seventh cause of action, not the fifth. Therefore, we will address the
viability of that cause of action as well.
       In the seventh cause of action, plaintiff alleges that the defendants “negligently
inflicting pain and suffering, psychological and emotional distress on plaintiff by
erroneously placing him on a management cell type status.” According to the complaint,
prison officials may place inmates on property restriction equivalent to a management
cell “if inmates persist in disruptive, destructive and dangerous behaviors and will not
respond to orders and warnings to desist.” (Cf. Cal. Code Regs., tit. 15, § 3332,
subd. (f).) Plaintiff’s own allegations demonstrate that he did in fact fail to follow orders
to let go of his food port. The complaint states: “Sgt. Rasley came and gave me a direct
order to release the food port and I refused.” Therefore, even assuming that a violation of
prison policy occurred and could support a claim for negligent infliction of emotional
distress, the complaint’s allegations show that no such violation occurred here.
              b. Denial of Access to the Courts Claim
       In response to plaintiff’s allegations of improper property restriction, defendants
rely entirely on their contention that plaintiff’s behavior “falls squarely within the ambit”
of the applicable prison regulations. As explained above, we agree with this assertion.
However, the fact that the complaint shows that plaintiff’s conduct warranted property
restriction does not end our analysis. Even if prison regulations justify restrictions on a




                                              9.
prisoner’s property, the specific manner by which the restriction is implemented may
nonetheless violate the federal constitution.8
       Prisoners have a constitutional right to access the courts. (Lewis v. Casey (1996)
518 U.S. 343, 346.) There are at least two categories of suits prisoners bring to enforce
this right. (See Christopher v. Harbury (2002) 536 U.S. 403, 412–414.) “In the first are
claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and
filing suits at the present time. (Id. at p. 413.) “The second category covers claims not in
aid of a class of suits yet to be litigated, but of specific cases that cannot now be tried …
no matter what official action may be in the future.”9 (Id. at pp. 413–414, fn. omitted.)
In either type of suit, the prisoner must plead facts demonstrating that the underlying
action frustrated by prison officials was “ ‘nonfrivolous’ ” or “ ‘arguable.’ ” (Id. at
p. 415.) Moreover, when asserting claims in the second category, the complaint must
identify “a remedy that may be awarded as recompense ….” (Ibid.)
       Here, plaintiff alleges that prison officials confiscated his property, including
“legal material.” Sergeant Rasley said he would return the legal materials, but failed to
do so. The unreturned documents allegedly included “appeal responses, medical and
mental health records, notes from legal research … address books, exhibits … and
supporting documentary evidence for [a] criminal appeal and federal lawsuits.” !(MtA
12)! He claims that as a result of defendants’ decision to confiscate these materials and
not return them, plaintiff suffered several adverse rulings and dismissals in various cases.
!(MtA 13)! Because this is an appeal from a demurrer, we treat these allegations as true.
(Thrifty Payless, Inc. v. Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1234,

       8  Plaintiff’s causes of action are not labeled as denial-of-access-to-the-courts
claims. However, we “look past the form of the pleading to its substance.” (Saunders v.
Cariss (1990) 224 Cal.App.3d 905, 908.) “Our task is to determine whether the pleaded
facts state a cause of action on any available legal theory.” (Ibid.)
       9   Plaintiff’s suit appears to be in the second category.



                                               10.
fn. 1.) And, if true, the allegations could form the core of a viable denial of access claim.
(Lewis v. Casey, supra, 518 U.S. at p. 350, citing Johnson v. Avery (1969) 393 U.S. 483,
489–490 [Supreme Court has protected right to access courts “by prohibiting state prison
officials from actively interfering with inmates’ attempts to prepare legal documents”].)
       Notably, the Supreme Court has imposed specific pleading requirements for denial
of access claims. (See Christopher v. Harbury, supra, 536 at p. 415.) Plaintiff failed to
satisfy those requirements by (1) not describing the underlying actions that were
adversely affected and (2) not proposing a remedy for the alleged violation. (See ibid.)
Therefore, a demurrer did lie as to plaintiff’s denial of access claim. We will therefore
affirm the decision to sustain the demurrer, even though defendants did not assert these
specific objections below. (See Martin v. Bridgeport Community Assn, Inc. (2009) 173
Cal.App.4th 1024, 1031.)
       Next, we must determine if plaintiff must be granted leave to amend this claim. If
“an amendment could cure the defect,” then leave to amend must be granted. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, italics added.) That is, “unless the
complaint shows on its face that it is incapable of amendment,” leave to amend must be
granted. (Lee v. Los Angeles County Metro. Transportation Auth. (2003) 107
Cal.App.4th 848, 854, italics removed; accord Berkeley Police Assn. v. City of Berkeley
(1977) 76 Cal.App.3d 931, 942.) Here, the defect is that plaintiff did not allege sufficient
facts regarding the substance of the underlying actions, the specifics of how each action
was adversely affected by defendants’ alleged conduct, or proposed remedies. Since the
complaint does not show on its face that it is incapable of such an amendment, we direct
the court to grant plaintiff leave to amend the complaint as to the claim he was
unconstitutionally denied access to the courts. 10

       10 We acknowledge that plaintiff has had a prior opportunity to amend this cause
of action. But now “that we have clarified and isolated” the pivotal pleading defect, it is
“appropriate” for plaintiff to be granted leave to amend. (Smith v. State Farm Mutual


                                             11.
                                      DISPOSITION
       The judgment is reversed only insofar as it denies leave to amend plaintiff’s
denial-of-access-to-the-courts claim. The superior court is directed to enter an order (1)
sustaining the demurrer as to plaintiff’s claim that he was denied access to the courts with
leave to amend and (2) sustaining the demurrer without leave to amend as to all other
causes of action.




Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 724–725.) Defendant did not raise these
particular issues below, and plaintiff is entitled to have the specific pleading deficiencies
“pointed out” before being denied leave to amend. (Cf. Loper v. Flynn (1946) 72
Cal.App.2d 619, 625.) “Liberality in permitting amendment is the rule, not only where a
complaint is defective as to form but also where it is deficient in substance, if a fair prior
opportunity to correct the substantive defect has not been given. [Citation.]” (McDonald
v. Superior Court (1986) 180 Cal.App.3d 297, 304.)



                                             12.
