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Glenn David O'neal v. Deputy Bailey

June 2, 2011

GLENN DAVID O'NEAL, PLAINTIFF,
v.
DEPUTY BAILEY, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, on May 10, 2011 ("Complaint").

Congress has mandated that courts perform an initial screening of civil rights actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. The Court "shall" dismiss such an action if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

ALLEGATIONS OF THE COMPLAINT

Plaintiff is currently detained at the West Valley Detention Center ("WVDC") in Rancho Cucamonga in San Bernardino County. (Complaint at 1.) Defendants are the San Bernardino County Sheriff's Department ("Sheriff's Department") and Sheriff's Deputies Bailey, Franco, and Cumbess. (Id. at 3-4.)

Plaintiff alleges that he is a vegan and a participant in the WVDC religious diet program. (Complaint at 5.) On June 27, 2010, he noticed eggs in his potato dish. (Id.) He notified Deputies Bailey and Cumbess but they refused to notify the kitchen. (Id.) Plaintiff threw the food on the floor. (Id.) The deputies did not punish him. (Id.) On June 28, 2010, plaintiff again noticed eggs mixed with his potatoes. (Id.) Once again, Deputies Bailey and Cumbess refused to notify the kitchen, and plaintiff threw his food on the floor. (Id.) Again, no disciplinary action was taken. (Id.) Later that day, plaintiff told Deputy Bailey that Mexican and white inmates were tired of seeing food thrown on the floor, and plaintiff accused Bailey of trying to stoke racial tensions by refusing to notify the kitchen of problems with plaintiff's religious diet. (Id. at 5, Attach. at 1.) That same day, Deputy Bailey asked plaintiff if he wanted to make a statement in connection with a disciplinary report being prepared against him for throwing food on the floor. (Complaint, Attach. at 1.) Plaintiff accused Deputy Bailey of refusing to notify the kitchen of plaintiff's complaints about eggs in his food. (Id.)

At about 11:00 p.m., Deputies Bailey, Cumbess, and John Doe came to plaintiff's cell, handcuffed him and his cellmate, and directed the cellmate to leave. (Complaint, Attach. at 1.) Deputy Bailey then: "charged" plaintiff; threw him to the floor by his hair; pummeled him with "knee kicks" to the chest, back, and sides; slapped and punched his face; pulled his hair; and choked him. (Id.) Deputy Cumbess and John Doe punched plaintiff's legs and twisted his ankles. (Id. at 1-2.) The deputies then escorted plaintiff to administrative segregation. (Id. at 2.) En route, Deputies Cumbess and Bailey bent plaintiff's arms upward behind him and twisted his wrists and fingers. (Id.) Plaintiff sustained handcuff burns and nerve damage to his fingers, and his right thumb is still numb "in places." (Id.) Upon arriving in the administrative segregation unit, Deputy Bailey threw plaintiff down and continued kneeing, punching, slapping, and choking him. (Id.) Deputy Franco later joined in, punching plaintiff and twisting his ankles. (Id.) Plaintiff alleges that the deputies used force against him even though he did not disobey any orders. (Id.)

A nurse examined plaintiff's injuries, and he was prescribed Motrin. (Complaint, Attach. at 2.) He was interviewed about the incident, and his injuries were photographed. (Id.)

The next day, June 29, 2010, plaintiff was given a regular nonvegan meal. (Complaint, Attach. at 2.) Plaintiff told Deputy Franco that he was a Christian who received religious diet meals. (Id.) Franco told him to "take it or leave it" and refused to call the kitchen. (Id.) After Deputy Franco left, plaintiff threw the tray on the floor. (Id. at 2-3.) When Franco returned, he pepper-sprayed plaintiff. (Id. at 3.) Plaintiff alleges that he was not engaging in any behavior that violated jail rules at the time Franco pepper-sprayed him, and plaintiff contends that Franco pepper-sprayed him in retaliation for plaintiff having named Franco as a defendant in the action captioned O'Neal v. Brenes, EDCV 09-1884-DDP (MAN), which presently is pending in this court. (Id. at 3-4.) Plaintiff was not decontaminated, and he did not receive fresh linen until July 1, 2010. (Id. at 3.)

After these incidents, plaintiff suffered from insomnia, depression, and fear that the deputies would again beat and starve him. (Complaint, Attach. at 4.) He requested mental health treatment, but he was told that he did not meet the criteria. (Id.) Plaintiff was interviewed by clinician Giselle and clinician Black, but they did not provide treatment suitable for him as an assault trauma victim. (Id. at 4-5.) Plaintiff complains that the jail provides mental health treatment only for inmates who are "suicidal, homicidal, seeing things, or hearing voices." (Id. at 4.) He also complains that other persons were present during his interviews with Giselle and Black. (Id.)

Plaintiff asserts three claims for relief: (1) a First Amendment Free Exercise of Religion claim; (2) a Fourteenth Amendment excessive force claim; and (3) an Eighth Amendment inadequate medical care claim.*fn1 (Complaint at 5, Attach. at 4.) He seeks compensatory and punitive damages, as well as injunctive relief directing the Sheriff's Department to develop mental health programs for victims of assaults occurring within WVDC. (Complaint at 6.)

DISCUSSION

I. PLAINTIFF'S FOURTEENTH AMENDMENT EXCESSIVE FORCE CLAIMS AGAINST DEPUTIES BAILEY, CUMBESS, AND FRANCO WITHSTAND SCREENING.

At this early stage of the action, the Court finds that plaintiff has stated excessive force claims against defendants Bailey, Cumbess, and Franco, in their individual capacities, based on factual allegations regarding the force they allegedly used against him on February 28, 2010, and Deputy Franco's pepper spraying of plaintiff on February 29, 2010. Because plaintiff is held at WVDC as a ...


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