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Michael A. Serger v. Deputy Sheriff Adams

October 27, 2011


The opinion of the court was delivered by: Peggy A. Leen United States Magistrate Judge


(IFP App - Dkt. #35)

(IFP App - Dkt. #38)

Plaintiff Michael A. Serger is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Pursuant to the district judge's Order (Dkt. #30), Plaintiff submitted a Second Amended Complaint (Dkt. #32). This proceeding was referred to this court by Local Rule IB 1-9.

I. In Forma Pauperis Application

Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff's Second Amended Complaint.

II. Screening the Complaint

Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.

I. Factual Allegations.

Plaintiff's Second Amended Complaint (Dkt. #32) alleges that Plaintiff was arrested on December 31, 2006, when he contacted police to alert them to an ongoing burglary at his uncle's house. Plaintiff claims the police mistook his actions and arrested him. He was released on bail. On April 20, 2007, Plaintiff suffered a stroke and was hospitalized. While comatose, Plaintiff missed a court appearance and was arrested upon his release from the hospital. In June 2007, while an inmate at the Sutter County Jail, he had not fully recovered from his stroke and was unable to speak well. His remarks were often not responsive to questions asked. He received no treatment while at the jail. In fact, he was maintained in an isolation cell for twenty-three hours per day. Plaintiff asserts that this lack of treatment, coupled with the isolation, compounded his sensory and social deprivation and worsened his mental and physical condition. Although Plaintiff had and showed the jail staff a report of a CT scan on May 4, 2007, showing continued abnormal activity, jail staff said it was only an alleged stroke, and they treated Plaintiff as if he had not suffered a stroke. Correctional staff declined or refused to address Plaintiff's medical needs.

While incarcerated, Plaintiff was brutalized by a number of correctional officers on three occasions. When there were no witnesses, Defendant Adams came to the holding cell under the courtroom laughing. He told the other prisoners to leave, and Plaintiff asked for his attorney. As Plaintiff was escorted to the courtroom in shackles, Defendant Adams struck Plaintiff hard in the lower back twice. When Plaintiff reached the courtroom, he tried to tell the judge what occurred, but because of the after-effects of his stroke, Plaintiff could not communicate the words properly, and only jumbled sounds came out.

On August 6, 2007, Plaintiff was being held in the courthouse basement after court. Defendant Barnec led Plaintiff back to a bench, and Plaintiff was unsteady in sitting down. Defendant Barnec slammed Plaintiff down and struck him in the right backside in front of at least eight inmates. Plaintiff said the strike felt like it was made with something metal, and a witness told him Defendant Barnec hit him with a ring of keys. Plaintiff could not properly ambulate for five days after the incident. He was provided no medical evaluation or assistance. Defendant Barnec told another inmate Plaintiff was faking his disability, and Defendant Barnec felt hostile toward Plaintiff. The same inmate also reported being similarly abused by Defendant Barnec.

On November 5, 2007, Defendant Kehoe grabbed one of Plaintiff's arms, and another guard grabbed the other. They placed chains on Plaintiff's hands and belt. Four people, including Defendants Kehoe and Simpson, dragged Plaintiff from his cell to the SHU*fn1 instead of to the visitation area to see his expected visitor, Scott Kirchner. Defendants Kehoe and Simpson took Plaintiff's legal papers, grabbed his hair, and hit him on the right side of the face three to five times. Sometime during the attack, Plaintiff's ribs were injured. Plaintiff was rendered unconscious from the attack, and he remained on the SHU floor for about nine hours. Plaintiff believes he suffered another stroke as a result of the ...

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