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Dennis G. Claiborne v. Blauser

August 31, 2011

DENNIS G. CLAIBORNE, PLAINTIFF,
v.
BLAUSER, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Dennis G. Claiborne, a state prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis, a request for appointment of counsel and two requests for preliminary injunctions. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. Request to Proceed In Forma Pauperis

Plaintiff requests leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 8, 17. Under 28 U.S.C. § 1915(g), a prisoner may not proceed in forma pauperis if on three or more prior occasions, he has, while incarcerated, brought an action that was dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury. On April 15, 2011, the undersigned found that § 1915(g) barred plaintiff from proceeding in forma pauperis and recommended that plaintiff's request to so proceed be denied. Dckt. No. 13. On June 27, 2011, the assigned district judge declined to adopt that recommendation, concluding that plaintiff had adequately alleged an imminent danger of serious physical injury. Dckt. No. 16. The district judge directed the undersigned to resume consideration of plaintiff's application to proceed in forma pauperis. Id.

In considering the remainder of the relevant factors, plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2) and the court grants plaintiff's application to proceed in forma pauperis. By separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Screening Order

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

It is plaintiff's responsibility to allege facts to state a plausible claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). However, a district court must construe a pro se pleading "liberally," and prior to dismissal, inform the plaintiff of deficiencies in his complaint and provide him with an opportunity to cure those deficiencies in an amended complaint. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

A. Plaintiff's Allegations

Plaintiff's allegations concern events that allegedly took place at High Desert State Prison. Compl. at 3.*fn1 Plaintiff alleges he is mobility impaired due to a total knee replacement and requires a four-point cane to ambulate. Id. According to plaintiff, defendants Blauser and Martin were or should have been aware of plaintiff's medical condition. Id. at 7.

Plaintiff claims that on May 3, 2010, defendant Blauser informed plaintiff she had received a call informing her that plaintiff had been "hanging out." Id. at 4. Plaintiff allegedly denied he had been hanging out. Id. Blauser then allegedly demanded that plaintiff be confined to his cell and denied yard or day-room privileges. Id. In response, plaintiff asked Blauser if he could speak with the yard sergeant. Id. Blauser allegedly repeated her order that plaintiff go to his cell. Id. Next, plaintiff claims he again requested to see the yard sergeant before he was confined to his cell. Id.

Blauser then allegedly took plaintiff's cane and ordered plaintiff to "cuff up" without waist chains. Id. Plaintiff claims he objected when Blauser took his cane and handcuffed him behind his back, but Blauser responded "that it was the procedure of the CDCR." Id. Exhibits to plaintiff's complaint, as well as plaintiff's September 10, 2010 motion for a preliminary injunction, indicate that in emergency situations, prison officials may forego waist chains and handcuff an inmate behind his back. Dckt. No. 2 at 2 (stating that inmates are required to "cuff up" behind their backs while under escort during emergencies); Compl. at 56 (Director's Level Response to plaintiff's administrative appeal) (stating that under California Department of Corrections and Rehabilitation ("CDCR") policy, an officer may use handcuffs to restrain an inmate in a situation that could lead to violence or disruption).

After being handcuffed, plaintiff claims defendants Blauser and Martin allegedly "march[ed]/ drag[ged]" plaintiff across the yard, "which is riddled with potholes and grass patches." Compl.at 5. Plaintiff claims he tried to alert defendants of his difficulty walking across the yard without his cane, but they continued to jerk plaintiff's arm and pull him across the yard. Id. As a result, plaintiff claims he stumbled. Id. Plaintiff alleges Blauser then insisted that plaintiff was trying to get way from her and could not be convinced that plaintiff needed his cane or that they were dragging him too fast. Id.

Plaintiff alleges that during the escort, he stumbled over a three to five inch lift on the ground. Id. When Blauser felt the weight of plaintiff coming down, she allegedly yelled "He's resisting," and took plaintiff to the ground. Id. Plaintiff claims Blauser kneed him in the ribs, on his replacement knee, and on his head. Id. Plaintiff claims she also punched him in the face three to five times, until relief officers arrived Id. at 6.

Plaintiff claims defendant Gullion interviewed plaintiff afterward. Id. Gullion allegedly warned plaintiff that if he claimed Blauser applied excessive force, plaintiff would be placed in the "hole" indefinitely. Id. Plaintiff claims he told Gullion that Blauser's actions did not amount to excessive force. Id. However, plaintiff now claims that Blauser's actions violated the Eighth Amendment. Id.

Plaintiff claims he was injured in that he suffered abrasions to his face and knee, his knee became "wobbly," his ribs were "re-injured," and he began to suffer headaches. Id. at 6, 10. Plaintiff alleges his injuries could have been prevented by application of waist restraints, use of his cane, and by taking appropriate care in walking plaintiff on level terrain. Id. at 7. According to plaintiff, it is apparent that the practices of the defendants and the CDCR will not cease unless the court orders them to change their escort procedures. Id.

Plaintiff's complaint includes a section called "Personal Involvement," in which he alleges in various conclusory terms, that all defendants named -- Blauser, Martin, Gullion, McDonald, the Director of Corrections, and John Does -- failed to make policy to prevent predictable violations, knew that constitutional violations were taking place and failed to correct them, failed to act on obvious risks to the health and safety of plaintiff, failed to properly train subordinates in handling inmates with disabilities, allowed systematic or gross deficiencies in procedures, and approved, allowed, continued, or tacitly authorized policies, practices or procedures which were substantially certain to result in deprivations of plaintiff's constitutional rights. Id. at 12-14. The complaint does not include any factual allegations against defendants McDonald, the Director of Corrections, or Doe defendants.

Plaintiff seeks damages and injunctive relief. Id. at 4.

B. Eighth Amendment Standards

1. Excessive Force

"When prison officials use excessive force against prisoners, they violate the inmates' Eighth Amendment right to be free from cruel and unusual punishment." Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). In order to state a claim for the use of excessive force in violation of the Eighth Amendment, plaintiff must allege facts that, if proven, would establish that prison officials applied force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination, the court may evaluate (1) the need for application of force, (2) the relationship between that need ...


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