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Xavier Dmetri Nailing v. B.D. Fosterer

March 2, 2012

XAVIER DMETRI NAILING,
PLAINTIFF,
v.
B.D. FOSTERER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a former prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendant Bemrick's motion to dismiss (Docs. 29 & 67); the remaining defendants' separate motion to dismiss (Doc. 45); and defendants' motion to strike plaintiff's sur-reply (Doc. 63).*fn1

I. PLAINTIFF'S ALLEGATIONS

This action proceeds on the amended complaint filed on March 2, 2010. The following 12 defendants remain in the action: B.D. Forsterer; K.O. Holman; P. Coughlin; I.M. Lucas; R. Pruitt; Stotz; A.D. Brown; C. Lewis; T.J. Vasquez; J. Torruella; I. Cardeno; and R.J. Bemrick.*fn2 Plaintiff alleges generally that defendants disregarded a serious risk to his safety and that, after he had been assaulted, defendants failed to respond to his serious medical needs.

More specifically, plaintiff alleges that defendants essentially labeled plaintiff a sex offender "by way of printing disorderly conduct; prostitution offer sex on a CDCR 128-G classification chrono." Plaintiff claims that such chonos are "circulated to all inmates in classification or via prison mail; so that inmates can prove to one another that one is not a sex offender." Plaintiff claims that it is well-known among inmates and prison staff that prisoners labeled as sex offenders "are attacked, stabbed, and or beaten." Plaintiff alleges that defendants must have known that he would be attacked as a result of the chrono "because of the high rate of inmate assaults in the past at Folsom State Prison . . . ." Plaintiff adds:

Defendants had incorrect information in the Plaintiff central file that states Nailing is an effeminate homosexual that is incapable of defending himself from sexual harassment. The defendants knew the Plaintiff was an obvious target for assault. Yet put him in a dangerous (GP).

Next, plaintiff claims that "he would not be let out to eat with the rest of the Hispanics on his tier because he's black." According to plaintiff, defendant Lucas "changes the Plaintiff ethnicity from Hispanic to black causing further discrimination by defendant Martin and Pruitt stating to the Plaintiff 'your ass out.'" Plaintiff states that he was "then assaulted after defendant C. Lewis unlocked the tier gate let one of the attacker pass right by him, then the defendant pulled down the bar that unlocks all the cell waited until the Plaintiff cell was pushed open then pulled down the bar locking the Plaintiff cell open."

Plaintiff next claims that he was taken to see the prison doctor, defendant Torruella. According to plaintiff, defendant Torruella asked plaintiff one question quickly, looked him over, and said "He's fine, he can go." Plaintiff states that the next day he told defendant Brown that he was unable to open his mouth to eat. Defendant Brown instructed plaintiff to complete a "sick call slip." The next day, according to plaintiff, he told defendant Stotz that he could not open his mouth to eat. Again, plaintiff was instructed to complete a "sick call slip" in order to be seen by prison medical staff. Plaintiff states that, over the next two weeks, he continued to complain to defendants that he could not open his mouth to eat.

Plaintiff next states that he was seen by a prison doctor to whom he repeated his complaints of an inability to open his mouth to eat. Plaintiff states "on information and belief" that defendant Cardeno did not order any x-rays at the time, "there by delaying and causing further serious injury to Plaintiff serious medical need." According to plaintiff, several months passed until his face was eventually x-rayed. Plaintiff states that defendant Cardeno reviewed the x-ray and determined that plaintiff had a fracture. Plaintiff states that this diagnosis was confirmed by an outside dentist and oral surgeon. The oral surgeon also opined that plaintiff has sustained nerve damage. Plaintiff claims that the delay and/or denial of health care was retaliation for his having filed inmate grievances in the past.

Plaintiff outlines the following timeline of events: July 17, 2008 Upon plaintiff's arrival in the California prison system, his ethnicity was listed as "Hispanic."

September 4, 2008 Plaintiff filed an inmate grievance because he learned that his ethnicity had been changed to "Black."

September 26, 2008 Plaintiff's grievance was granted.

October 30, 2008 When plaintiff arrived at Folsom State Prison his ethnicity was listed as "Hispanic."

November 4, 2008 Plaintiff appeared before the classification committee for placement. Defendants Forsterer, Holman, and Coughlin were on the panel. According to plaintiff:

. . . All three named defendants must agree upon any information that is placed after "sex" on any 128G chrono and they did. This same committee also agreed to send the Plaintiff to general population when defendants should have known and upon information and belief did know that by placing any inmate on general population and printing anything after "sex" on one 128G chrono that its highly likely that; that inmate will be attacked. . . .

Plaintiff claims that the committee "used a misdemeanor to label the Plaintiff a sex offender. . . ." Plaintiff states defendants' conduct "placed him in a category from which there is no return."

January 10, 2009 Plaintiff obtained a copy of the 128G chrono in question.

Plaintiff also claims that defendant Pruitt came to his cell and told him that, because he is listed as "Black," he would not be allowed out of his cell to eat with the general population. Pruitt and defendant Martin told plaintiff that the Black inmates were on lock-down and that he would bring food to plaintiff's cell.

January 12, 2009 Plaintiff filed an inmate grievance "because he knew that he was not a sex offender and by classification placing disorderly conduct then stating prostitution on his 128G chrono. . . ."

January 26, 2009 Plaintiff was interviewed by Forsterer in connection with his grievance. During this interview, plaintiff informed Forsterer that the sex offender designation was incorrect and that leaving such designation in his file created a risk of danger from other inmates. According to plaintiff, defendant Forsterer told him that the sex offender designation was based on three crimes for which plaintiff served time in county jail. ...


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