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Perez v. Sisto

January 7, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is a motion to dismiss, filed on 3/04/08 (Docket # 16), brought by defendants Durfey, Flete,*fn1 Orrick-Schlabes (hereafter, Orrick),*fn2 Roszko and Sandy, to which plaintiff has filed an opposition. Not at issue in this motion are plaintiff's claims against defendants Cantu, Cortez and Williams who have previously filed their answer to the amended complaint. See Answer, filed on 3/04/08 (# 17). As to defendant Lozano, although a waiver of service of process was filed as to this defendant in this court's case docket on February 8, 2008 (# 14, p. 17), defendants' counsel has filed neither a motion nor an answer on that individual's behalf. Therefore, the defendant Lozano must show cause within ten (10) days of the filed date of this order, why he or she should not be found to be in default for failing to comply with the time constraints for filing an answer, pursuant to Fed. R. Civ. P. 4(d)(3).

Amended Complaint

Court records indicate that plaintiff filed this action on 9/14/06 in the Northern District, from which it was transferred by Order filed in this court on 9/20/06. Following this court's Order, filed on 4/06/07, dismissing the vast majority of the defendants named in the original complaint, but granting plaintiff leave to amend, plaintiff filed an amended complaint on 5/04/07. The court found that plaintiff had made cognizable claims in the amended complaint as to defendants Lieutenant (Lt.) Lozano; Lt. B.C. Roszko; Lt. Sandy; Sergeant (Sgt.) Orrick; Sgt. Flete; Sgt. Durfey; Sgt. C.L. Williams; Correctional Officer (C/O) Cantu; and C/O Cortez. See Order, filed on 10/23/07 (# 9).

On the evening of 9/02/05, as plaintiff, a Viet Nam vet under psychiatric care who is prescribed medication twice daily to combat serious depression, anxiety and bouts of psychosis, such as hearing voices, was on his way for his routine evening dosage, he was stopped by defendants Orrick and Flete. Amended Complaint (AC), p. 5. Defendant Orrick told plaintiff in vulgar terminology to return to his building even though this defendant was aware of plaintiff's medication needs. Id., at 5-6. An argument ensued with both parties using vulgar language, but plaintiff turned to walk away toward his housing unit. Id. at 6. Defendants Orrick and Fleet chased after plaintiff, ordering him to submit to a pat down search, even though no policy precludes plaintiff from getting his meds and in fact it is the practice that the inmates could get their medication before or immediately after their meals. Id. Defendant Orrick has a policy of hassling inmates on psych medication for no reason. Id. Without the psych meds, plaintiff is sleepless at night and his anxiety rises to the point of his feeling as though he is having a heart attack. Id. Plaintiff was handcuffed and escorted to the Center Complex, where plaintiff was placed in a 4x4x8 cage. Id. When asked by defendant Sandy what plaintiff had done, defendant Orrick replied, "I don't like being called a fat fucking bitch." Id. Plaintiff states that no mention was made of alleged sexual harassment at that point. Id., at 6-7.

About half an hour later, plaintiff was escorted by defendant Flete to an office where defendants Orrick and Sandy were waiting. AC, p. 7. When plaintiff entered, he saw that the contents of his wallet was spread out on the desk and noticed his prison "C" file on the desk where defendant Sandy sat. Id. When defendant Sandy yelled: "What the fuck are you looking at her for," as plaintiff looked at defendant Orrick and his wallet contents, he replied that he was wondering what Orrick was looking for, to which defendant Sandy responded: "Anything and everything she could take and I'm going to start with that necklace around your neck." Id. When plaintiff explained it was a rosary not a necklace, defendant Sandy, in crude terms, indicated that she did not care and began to mock plaintiff, asking why plaintiff did not get visits and asking if he had family or lady friends, "or do you just like little girls." Id. While defendant Sandy told plaintiff to "shut the fuck up," defendant Orrick continued to stand by plaintiff, pointing a can of mace at plaintiff's face. Id. When plaintiff was confused by defendant Sandy's question as to where his property was, Sandy became upset, ordering plaintiff back in the cage and directing that a lock-up order be written charging plaintiff with sexual harassment. Id. As plaintiff was being led out by defendant Flete, defendant Sandy reached for the rosary, telling plaintiff to take it off, which he could not do with cuffed hands; defendant Flete reached up and ripped it off plaintiff's neck. Id, at 7-8.

Plaintiff believes that he was subjected to a "trump[ed] up" sexual harassment charge and Sandy's derogatory comments about his lack of visits based on what defendant Sandy found in plaintiff's C-file regarding his commitment offense, and he contends that other inmates might seek to harm an inmate charged with sexually harassing a female guard. AC, p. 8. Plaintiff states, in addition to having his rosary ripped from his neck, he never received his medication. Id.

After being placed in Ad Seg, plaintiff, on 9/08/05, was seen by the ICC committee, and was released to yard II pending defendant Orrick's approval, without which he would go to yard I. AC, p. 8. It took twelve more days for plaintiff to be released to yard II due to defendant Orrick's apparently withholding approval for that period. Id. Plaintiff alleges that defendant Orrick deprived him of "his liberty to access to [sic] the main line." Id.

While on yard I, plaintiff, who is from Puerto Rico, was housed with an inmate from Central America who was also classed as "other." AC, p. 8. When plaintiff's cellmate was moved on 10/03/05, plaintiff, a 57-year-old with no gang affiliation, learned he was to be housed with a "Northern" inmate in Building 2. Due to the Northern prison gang inmates' well-known propensity for violence, plaintiff voiced his safety concerns to defendants Durfey and Roszko, who only gave plaintiff the choice of moving in with the Northern inmate or going to Ad Seg. Id., at 9. Plaintiff chose Ad Seg for safety reasons; he states that he was then placed in Ad Seg for refusing to cell with the inmate. Id., at 9-10. Plaintiff states that the cell he was being moved out of was to remain unoccupied for the evening and that inmates are housed according to their affiliation, i.e., a Northern Mexican is not housed with a Southern Mexican; thus, he believes the planned cell assignment amounted to an Eighth Amendment violation for failure to protect. Id.

When on 10/04/05, plaintiff was seen for a 114 hearing to determine whether plaintiff should stay in Ad Seg and go before the ICC committee or be released, Captain Scavetta, not a defendant, determined that plaintiff could be released to yard II. AC, p. 10. Nevertheless, defendant Flete came to plaintiff's cell in Ad Seg, disputed the captain's authority, and said he would only release plaintiff back to yard 1 to be housed with the Northern inmate, indicating his deliberate indifference to plaintiff's safety. Id., at 10-11. As a direct result of being forced to yard I by defendant Flete, plaintiff was ultimately attacked by another inmate and subjected to excessive use of force by two prison guards. Id., at 11.

From mid-October 2005, until February 2, 2006, plaintiff repeatedly spoke with defendant Williams asking to be housed with another cellmate or be sent to yard II, which pleas she ignored. AC, p. 11. In mid-January of 2006, plaintiff approached the associate warden for yard I and II, Ms. Crawford (not a defendant), explaining that he was being housed with a Northern inmate whose ethnicity had been changed to "other" by custody staff, by whom he meant defendant Williams. Id. The associate warden told plaintiff such a change could not occur without full committee action; when plaintiff and the associate warden were seen talking together by defendant Williams and she was told about the discussion, Williams yelled at plaintiff: "What are you doing going over my head to the A.W. about this bullshit?" Id., at 11-12. When plaintiff gave defendant Williams the name of the cellmate, Duran T-63911, Williams became more upset, saying in a loud voice which other inmates could overhear: "Get out of here and quit dropping peoples names trying to fuck up their program." Id., at 12.

As plaintiff continued to try to be rehoused, on 2/02/06, he approached defendant Williams again, asking that there be a "compaction" of inmates to free up a cell, where there were four cells with one inmate only in each, so that he could be housed with someone like himself who was also designated "other." AC, p. 12. Defendant Williams became upset again, yelling: "So now you want to fuck the blacks out of their cell. Just for you." Id. Plaintiff noticed a number of black inmates looking at him at that point, and, later that day, Inmate Socorro, E-99222, approached him about what he had overheard Williams saying about plaintiff trying to have black inmates moved from their cells, knocked plaintiff down and ran off. Id., at 12-13. Later on, plaintiff was again approached by Inmate Socorro, who had two other inmates with him. Id., at 13. Plaintiff was attacked by the inmates and C/O Henderson (not a defendant) saw what was happening and put the yard down. Id. Plaintiff was taken to medical in handcuffs; plaintiff was reported to have an elbow scrape. Id.

Plaintiff was taken to Center Complex and placed in a 4x4x6 cage and, a few minutes later, escorted to be interviewed by non-defendant Lt. Herrera. AC, p. 13. Defendant Williams came in and whispered to Herrera, after which Herrera told plaintiff that he had intended to release him back to the yard, but because of defendant Williams' information, plaintiff would be placed in Ad Seg for his safety. Id. Plaintiff was placed back in the holding cage still in restraints, which had not been removed. Id. After his hands had started to go numb, plaintiff told defendant Cortez of his pain and discomfort but Cortez ignored plaintiff's request to loosen the handcuffs. Id. When he could not get anyone to loosen the cuffs, he began to kick his cage, after which a correctional officer returned and removed the too-tight cuffs. Id., at 13-14. (Plaintiff does not clearly identify the C/O who removed his cuffs). When plaintiff asked to be taken to the clinic for a wrist injury from the handcuffs, defendant Cortez ignored plaintiff again. Id., at 14.

When plaintiff began to kick the holding cage again for attention, defendant Lozano ran in with a can of O.C. spray pointed at plaintiff, threatening to spray him if he did not stop. AC, p. 14. Defendant Lozano refused plaintiff's request to be seen by medical to document plaintiff's wrist injury. Id. Fifteen minutes later, defendants Cortez and Cantu came and told plaintiff to "cuff up" for an escort to medical. Id. Instead, however, they led plaintiff to Ad Seg; when plaintiff stopped to ask why, defendants Cantu and Cortez took him down; plaintiff could not break his fall with his hands cuffed behind him. Id., at 15. Plaintiff hit the ground with the force of the two defendants on top of him; his face hit the concrete ground. Id. Plaintiff suffered head and knee injuries over and above the previous wrist injury from the cuffs. Id. Plaintiff filed a grievance about these officers alleged use of excessive force. Id. Plaintiff's placement in Ad Seg on 2/02/06, occurred as a result of the above incident and the alleged mutual combat incident with Inmate Socorro. Id. Plaintiff was told by Lt. Herrera on 2/03/06, that the information provided by defendant Williams about plaintiff's safety was not credible. Id. Plaintiff was released to yard II on 3/16/06, but maintains that had defendant Flete released him as ordered by Capt. Scavetta, the yard I incident would not have occurred. Id., at 16. Plaintiff, a diagnosed mental health patient, states ...

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