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Shead v. Vong

September 8, 2009

HERMON SHEAD, PLAINTIFF,
v.
C/O VONG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF'S EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT VONG AND THAT ALL OTHER CLAIMS BE DISMISSED (Doc. 1)

Plaintiff Hermon Shead is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California law. Plaintiff filed his complaint on January 5, 2009 (doc. 1). On April 6, 2009, this court ordered plaintiff to either file an amended complaint or notify the court of his willingness to proceed only on claims found to be cognizable (doc. 11). Plaintiff responded, indicating his intent to stand on his complaint as originally submitted (doc. 12). Accordingly, these Findings and Recommendations now issue.

I. Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Ibid.

Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, plaintiff must set forth the legal and factual basis for his claim.

In screening a complaint, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997), quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Plaintiff's Claim

A. Summary of Complaint

Plaintiff was injured when he experienced a diabetic seizure at Pleasant Valley State Prison (PVSP), Coalinga, California, where he is currently housed. Plaintiff seeks a declaratory judgment and money damages for violations of his rights under the First and Eighth Amendments to the United States Constitution. Plaintiff names as defendants Correctional Officer Vong, Sgt. Fogle, and Sgt. M. Bradford,*fn1 all of whom are employed at PVSP, and P.D. Vera, an appeals examiner for the California Department of Corrections and Rehabilitation (CDCR).

On July 3, 2007, plaintiff, a diabetic, experienced a severe hypoglycemic seizure as a result of low blood sugar. In the course of the seizure, plaintiff became unconscious, incurred lip and mouth injuries requiring stitches, and lost his front teeth. Plaintiff continues to suffer head pain, which he attributes to his injuries. Plaintiff alleges that his injuries were caused when C/O Vong struck him in the face with a billy club and that Sgt. Fogle, Sgt. Bradford, and appeals examiner Vera conspired to cover up Vong's misconduct in retaliation for plaintiff's filing a complaint against Vong.

B. Eighth Amendment Claim: Excessive Use of Force.

Plaintiff contends that Vong's striking him in the face with a billy club while he was suffering a diabetic seizure was an excessive use of force, particularly in light of the presence of medical personnel, plaintiff's apparent medical condition, and Vong's knowledge of plaintiff's diabetes.

"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).

"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). This test is appropriately applied when the allegations of excessive force arise from the defendant's attempts to subdue an inmate to enable administration of necessary medical treatment. Romano v. Howarth, 998 F.2d 101, 104 (2d. Cir. 1993).

Under federal notice pleading standards, plaintiff's allegations are sufficient to state a claim against defendant Vong. Fed. R. Civ. P. 8(a); Swierkiewicz, supra, 534 U.S. at 512-15; Austin, supra, 367 F.3d at 1171; Jackson, supra, 353 F.3d at 754; ...


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