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Demerson v. Satf Warden

August 31, 2010

EDWARD DEMERSON, PLAINTIFF,
v.
SATF WARDEN, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS THAT CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED OBJECTIONS DUE IN THIRTY DAYS

(Doc. 56)

I. Screening Requirement

Plaintiff Edward Demerson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's June 2, 2009, Second Amended Complaint filed in response to an earlier order dismissing the first amended complaint and granting Plaintiff leave amend.

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. § 1915(e)(2)(B)(ii).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.

II. Factual Summary

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Salinas Valley State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at the California Substance Abuse Treatment Facility at Corcoran. Plaintiff names the following defendants: Jeanne Woodford, Director of the California Department of Corrections and Rehabilitation (CDCR); N. Grannis, Chief of Inmate Appeals; Warden Derral Adams; Warden Kent Clark; Chief Deputy Warden L. Hense; Captain Diaz; Lieutenant A. Pineda; Lt. Wan; Lt. B. Odle; Sergeant Davis; Sgt. Munoz; Sgt. Padilla; Sgt. Curtiss; Correctional Officer Reynoso; C/O Renya; C/O Morgan; Medical Technical Assistant Hernandez.

Plaintiff sets forth multiple claims arising from three main but unrelated events: (1) an incident on March 8, 2005; (2) placement in a strip cell on May 31, 2005; and (3) placement in a strip cell October 19, 2005. Plaintiff's second amended complaint is virtually identical to his first amended complaint, although Plaintiff added a few new allegations and included notations in the margins. Plaintiff's claims arising from the incidents beginning on May 31, 2005, and October 19, 2005, are unrelated to the claims arising from the incident beginning on March 8, 2005, and are not appropriately litigated in this action. Fed. R. Civ. P. 18(a); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff was previously notified of this issue but again included the unrelated claims in his second amended complaint. The Court therefore recommends dismissal of the claims arising out of Plaintiff's placement in strip cells on May 31, 2005, and October 19, 2005. The Court will address on the merits only those properly related claims arising from the incident that began on March 8, 2005. Plaintiff's allegations relating to those claims are summarized as follows.

On March 8, 2005, Correctional Officers Renya and Reynoso, and Sgt. Curtiss had Plaintiff placed in the shower while his cell was searched. When Plaintiff returned, he noticed that his personal belongings had hardly been touched, but his cellmate's belongings had been ransacked and piled on the floor. C/O Renya told Plaintiff that he was going to tell Plaintiff's cellmate that his items had been ransacked because of Plaintiff. C/O Renya told C/O Reynoso to let him out of the section so he could get Plaintiff's "cellie" to deal with Plaintiff.

C/O Renya followed through with his threat. Plaintiff's cellmate returned, and before he entered the cell, threatened to "kick [Plaintiff's] ass" and told Plaintiff to get out. (Am. Compl. 10:22.) Plaintiff packed his property. C/O Reynoso opened the cell door slightly and Plaintiff placed his typewriter and law books outside of the cell door. C/O Reynoso then closed the cell door from the control tower. C/O Reynoso called Sgt. Curtiss, who came to the cell and, along with C/Os Renya and Reynoso, heard Plaintiff's "cellie" continue to threaten Plaintiff. Sgt. Curtiss told the "cellie" to enter the cell when the door was opened. When the door opened Plaintiff's "cellie" entered the cell and Plaintiff exited the cell, despite C/O Reynoso's attempt to close the cell door before Plaintiff could exit. Sgt. Curtiss told Plaintiff to get back in his cell and Plaintiff refused out of fear.

Sgt. Curtiss placed one hand on Plaintiff, who refused to give his other arm for cuffing. Sgt. Curtiss yanked Plaintiff backwards, causing him to fall on one knee. Sgt. Curtiss told C/O Renya to take Plaintiff down. Both Curtiss and Renya pounced on Plaintiff's back, knee and neck. Plaintiff was secured in handcuffs with additional assistance from C/O Morgan. C/O Morgan placed the handcuffs on Plaintiff extremely tightly and then yanked up, causing extreme pain and causing the cuffs to cut into his wrists. Plaintiff advised C/O Morgan that he needed a walker to ambulate, but Sgt. Curtiss said Plaintiff could not have his walker. C/O Morgan dragged Plaintiff approximately 100 yards to the office holding cage, where he was left in the tightened cuffs. As a result, his hands swelled. Sgt. Curtiss placed Plaintiff's law books and typewriter back in the cell and allowed Plaintiff's "cellie" to take whatever he wanted, which amounted to $130.00 - $150.00 of Plaintiff's personal property. At some point, MTA Hernandez interviewed Plaintiff. Plaintiff requested medical attention for his back, neck, wrists and swollen hands. MTA Hernandez refused to take Plaintiff's vital signs or to provide any medical attention or a referral.

Lt. Odle fabricated a lock-up order and told two C/Os to transport Plaintiff to Administrative Segregation (AdSeg), disregarding Plaintiff's need for medical attention. The next day, while still in AdSeg, Plaintiff was taken to an institutional hospital to get shots of Toradol for pain. Plaintiff was then taken to another AdSeg unit and placed on "Management Cell Status" where he remained for one year before being taken to the Security Housing Unit (SHU). While Plaintiff was in AdSeg pending a disciplinary hearing, Defendants Curtiss, Renya, Reynoso, Morgan and Odle conspired and fabricated false disciplinary charges (Rules Violation Report, or RVR) for the purpose of covering up their use of excessive force, their staff sponsored gladiator fights and their failure to protect Plaintiff. Sgt. Padilla reviewed the RVR and went along with the "conspiracy in the fabrication of false disciplinary charges." (Am. Compl. 13:20.) Plaintiff claims that he was wrongfully placed in AdSeg and wrongfully placed on Management Cell Status pending the disciplinary hearing.

During the disciplinary hearing, Lt. Pineda, the hearing officer, denied Plaintiff's requests to call Lt. Odle as a witness and to call an inmate who had "crucial" testimony. (Am. Compl. 14:6.) Lt. Pineda allowed Plaintiff to telephonically call C/Os Renya and Reynoso as witnesses, but cut off their testimony and hung up on them as they were about to give testimony that would have favored Plaintiff. Lt. Pineda also failed to consider the evidence gathered by the investigative employee assigned to the case. Plaintiff was found guilty and had "time taken" of 150 days and was given an 18 month SHU term. (Am. Compl. 14:21.)

Plaintiff filed an inmate appeal "regarding the whole scenario," which was denied at all levels by Lt. Gallagher, Warden Hense, Inmate Appeals Coordinator Grannis and Director Woodford. Plaintiff also alleges that Defendant Woodford is liable for failure to supervise, train and manage the control and care for custody of inmates and the inmate appeals process. (Am. Compl. 16:28.)

Plaintiff includes the following additions in the second amended complaint: Plaintiff adds a page 17A to the second amended complaint. This page sets forth allegations in support of Plaintiff's due process claim. Plaintiff alleges generally that Defendant Woodford was deliberately indifferent to Plaintiff's due process rights by failing to "supervise, manage and enforce establish procedures, regulations and promulgated laws." (Am. Compl. P. 17A.) Plaintiff levels the conclusory allegation that Woodford failed to regulate and supervise threw to N. Grannis Chief Inmate Appeals Coordinator and thereby is cause in fact and proximate cause of damages cited and alleged threw out this claim and imposing atypical significant hardship upon Inmate Demerson, deprivation of property, due process violation, on strip cell status, management cell status, wrongful SHU term, 602 trashed, mail trashed, unfair hearing denied witnesses, evidence and hereby reiterate and allege, Plaintiff 03/08/05 statement of facts and Inmate 5/31/05 statement of facts, each and every other allegation, deprived by violation of Due Process hereby incorporated.

III. Claims

A. Excessive Force

The Eighth Amendment prohibits those who operate our prisons from using "excessive physical force against inmates." Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have "a duty to take reasonable steps to protect inmates from physical abuse"); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir.1988), cert. denied, 490 U.S. 1012 (1989) ("prison administrators' indifference to brutal behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim"). As courts have succinctly observed, "[p]ersons are sent to prison as punishment, not for punishment." Gordon v. Faber, 800 F.Supp. 797, 800 (N.D.Iowa 1992) (citation omitted), aff'd, 973 F.2d 686 (8th Cir.1992). "Being violently ...


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