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Emelito Exmundo v. Vella

May 2, 2011

EMELITO EXMUNDO
PLAINTIFF,
v.
VELLA, ET. AL., DEFENDANTS.



ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS

(Doc. 26)

I. Procedural History

Emelito Exmundo ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On November 21, 2007, Defendants removed the case to federal court. (Doc. 1). On September 8, 2008, the Court screened the complaint and gave Plaintiff the choice to amend the case or to proceed with cognizable claims. (Doc. 13). On December 15, 2008, Plaintiff filed the first amended complaint. (Doc. 20). On March 31, 2009, the action was consolidated with Case No. 1:06-cv-00205 by District Court order. (Doc. 21). On October 15, 2010, the action was reopened as a separate action. (Doc. 22). Plaintiff was granted leave to amend and on January 14, 2011, Plaintiff filed the second amended complaint which is presently before this Court. (Doc. 26).

II. 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. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

III. Plaintiff's Second Amended Complaint

Plaintiff is a state prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga California. The acts he complains of occurred at California State Prison, Corcoran ("CSPC") in Corcoran California. In the second amended complaint, Plaintiff names as defendants in this action: 1) J. A. Tilton, Secretary of the California Department of Corrections and Rehabilitation ("CDCR"); 2) Facility Captain R. Vella; 3) Sergeant R. Vogel; and 4) Counselor M. Rosenquist. (Doc. 26 at 3). Plaintiff seeks compensatory and punitive damages as well as declaratory and injunctive relief. (Doc. 26 at 3, 9). In particular, Plaintiff seeks to: 1) stop all acts to cover up the extent of any injuries, provide a "Chrono" to protect Plaintiff from further injuries and to provide for medication; 2) that Defendants Vogel, Vella and Rosenquist not be allowed to work where Plaintiff is housed and not to be allowed to work in a position that can affect the "programs, services, activities, safety and security of Plaintiff"; and 3) to expunge all the "false and retaliatory rules violation report[s], 1280 UCC Chrono and ICC Chrono and any documents surreptitiously filed by Defendants in [his] C-file." (Doc 26 at 8-9).

Plaintiff states that he filed a claim with the Board of Control for Personal Injuries under the California Tort Claims Act under § 810 et seq. of California's Government Code and § 1714 and § 527.6 under California's Civil Code seeking relief for emotional distress, pain and punitive damages. (Doc. 26 at 8). Plaintiff states that he seeks a claim against Defendant J. Tilton in his official capacity for being deliberately indifferent to Plaintiff's serious medical need since Pleasant Valley State Prison stopped providing ongoing follow-up medical care to address Plaintiff's chronic pain that resulted from being injured at CSPC on May 6, 2006 by Defendant Vogel. (Doc. 26 at 8).

Plaintiff alleges that on May 6, 2006, Defendants Vogel, Vella and Rosenquist conspired to use excessive force against Plaintiff and Defendant Vogel used excessive force on Plaintiff in retaliation for filing staff misconduct complaints against Defendants Vogel, Vella and Rosenquist. (Doc. 26 at 4). Plaintiff further alleges that Defendants Vogel, Vella and Rosenquist conspired to place Plaintiff in administrative segregation in retaliation. (Doc. 26 at 4). Plaintiff alleges that Defendant Vella masterminded the excessive force plot to occur on a day when Defendant Vella and Rosenquist were not working so as to conceal their participation in the conspiracy. (Doc. 26 at 4).

On May 5, 2006, Defendants Vella, Vogel and Rosenquist conspired to place Plaintiff in administrative segregation under the pretext that Plaintiff was a security risk. (Doc. 26 at 7). On May 6, 2006, Plaintiff was startled awake when Defendant Vogel suddenly entered the cell and yanked Plaintiff's arms such that Plaintiff felt pain and could hear his shoulder "pop." (Doc. 26 at 7). As a result of being startled, Plaintiff hit his head very hard under the bottom of the top bunk and was dizzy and in severe pain. (Doc. 26 at 7). Then Defendant Vogel grabbed the back of Plaintiff's neck and slammed his face into the cement wall with such force that it broke Plaintiff's nose and hurt his forehead. (Doc. 26 at 7). The impact from beating Plaintiff's head against the cement wall loosened Plaintiff's teeth and Plaintiff suffered reoccurring tooth aches and rapid decay of his teeth. (Doc. 26 at 7). Eventually, the dentist informed Plaintiff that the teeth where dead as a result of blunt force trauma and the dentist removed two teeth. (Doc. 26 at 7).

Then Defendant Vogel and Correctional Officer Halsey handcuffed Plaintiff and walked Plaintiff over to the program office while Plaintiff was barefoot. (Doc. 26 at 7). Some time later, Lieutenant Gadsden told Plaintiff that Defendant Vella ordered him to prepare the paperwork to place Plaintiff in administrative segregation. (Doc. 26 at 7). Then Defendant Vogel approached Plaintiff and told him that he was "only following the captain's orders." (Doc. 26 at 8).

In an attempt to develop his conspiracy to retaliate theory, Plaintiff painstakingly chronicles a time-line of unrelated prison grievances filed and lists the conduct relating to the grievances. The Court will attempt to summarize Plaintiff's narration of the underlying history of events that are not directly the basis of his current action.*fn1 In his complaint, Plaintiff states that he had filed an excessive force grievance in matter unrelated to this action and Sergeant Drevy falsely indicated that Plaintiff withdrew his grievance and Defendant Vella signed the form although he knew it was false because Plaintiff did not sign the withdrawal. (Doc. 26 at 5). Plaintiff complained about Defendant Vella's signing a false withdrawal of a grievance and Vella filing numerous false and retaliatory rules and violation reports against Plaintiff to retaliate against Plaintiff for filing grievances. (Doc. 26 at 5).

On April 11, 2006, Defendant Rosenquist called Plaintiff into her office to inform Plaintiff that Defendant Vella ordered her to recommend that Plaintiff should be placed in administrative segregation. On April 15, 2006, Plaintiff was interviewed by an unnamed individual regarding Plaintiff's staff misconduct complaint against Correctional Officer Castro. (Doc. 26 at 5). Plaintiff alleges that Defendant Vella told the interviewer to tell Plaintiff to withdraw the grievance and Plaintiff refused to withdraw the grievance. (Doc. 26 at 5-6).

On April 13, 2006, Defendant Vella was a member of a disciplinary committee and in that capacity, ordered punishment, refused Plaintiff's conflict of interest defense, did not allow Plaintiff the opportunity to assert a first amendment violation and did not allow Plaintiff to call witnesses or present evidence in his defense. (Doc. 26 at 6). On April 17, 2006, Plaintiff filed a staff misconduct complaint against Defendant Vogel for attempting to intimidate and coerce Plaintiff to withdraw his grievance. (Doc. 26 at 6). On April 25, 2006, Plaintiff filed a grievance against Defendant Vella and Rosenquist for filing a false classification Chrono and Defendant Vogel filed a false document in retaliation for Plaintiff's grievance against Correctional Officer Castro. (Doc. 26 at 6). On May 3, 2006, Plaintiff filed s staff misconduct complaint against Defendants Vogel and Vella for conspiring to retaliate as a result of Plaintiff's refusal to withdraw his complaint against Correctional Officer Castro. (Doc. 26 at 6).

IV. Plaintiff's Claims

A. Eighth Amendment ...


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