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Dwayne S. Montgomery v. I. Sanchez

August 23, 2012

DWAYNE S. MONTGOMERY,
PLAINTIFF,
v.
I. SANCHEZ, ET AL.,
DEFENDANTS.



ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND COGNIZABLE Doc. 1 RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Screening Requirement and Standard

On June 14, 2011, Plaintiff Dwayne S. Montgomery ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. 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 must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Plaintiff's Complaint

In Plaintiff's complaint, he names defendants "Doe" Officer; I. Sanchez, Correctional Officer; H.B. Smith, Correctional Officer; J. Pelayo, Correctional Officer; S.W. Duncan, Correctional Sergeant, who were employed at Kern Valley State Prison ("KVSP"). Compl. at 1, 3, 6, Doc. 1.

On August 12, 2010, Plaintiff informed the third watch floor officer ("Officer Doe") that Plaintiff was not getting along with cellmate, inmate Ivan Frost; that living conditions had become precarious; and that Plaintiff need a cell move for safety concerns. Id. at 7. Officer Doe stated there was nothing he could because Facility D was undergoing a major transition, being converted from general population to sensitive needs yard, and that only the watch Sergeant and facility Lieutenant had control over making convenient cell moves. Id. Plaintiff requested to speak with the Sergeant, and later that evening Officer Doe informed Plaintiff that the Sergeant was unavailable. Id.

On August 13, 2010, Plaintiff informed defendant Officer Smith that he was continuously having arguments with Frost, and that Plaintiff was in fear of his safety because Frost had made several threats toward him. Id. Plaintiff informed Smith that he needed a cell move, but Smith told Plaintiff to just bear with it for a while because Plaintiff and Frost would soon be moving to Facility A or B. Id.

On August 14, 2010, at 9:30 a.m., Plaintiff and Frost got into a heated argument, and Plaintiff notified defendant Pelayo that he had an emergency and needed to speak with one of the unit floor officers. Id. at 7-8. Pelayo issued a distress call and defendant Officer Sanchez came to the cell door. Id. at 8, 14. Plaintiff informed Sanchez that he had just been threatened with physical harm by inmate Frost and was in fear of his personal safety. Id. at 8. Plaintiff asked Sanchez to separate him from inmate Frost by being removed from the cell and placed in the shower area until Sanchez could contact his supervisor (the yard Sergeant) to arrange a cell move. Id. Sanchez completely ignored Plaintiff's plea for protection and walked away from the cell door without making any kind of inquiry as to the level or severity of the threat. Id. Plaintiff continued yelling out of his cell door to Pelayo and Smith, who were both in the control booth, demanding that someone call the yard Sergeant, but they ignored him. Id. Approximately 40 to 50 minutes later, inmate Frost assaulted Plaintiff, and he was knocked unconscious. Id. When Plaintiff regained consciousness, he began banging on the cell door, yelling "Mandown!" Id. The inmate housed in the cell next door also yelled "Mandown!" Id.

Sanchez came to the cell alone and noticed Plaintiff was bleeding from his nose and had a laceration under his left eye. Id. Sanchez then ordered Plaintiff and inmate Frost to prone out on the cell floor. Id. As they were both complying, Sanchez pepper sprayed Plaintiff through the food port on the cell door. Id. at 8-9. Sanchez did this without provocation or justification, and inmate in the neighboring cell and inmate Frost can testify to these facts. Id. at 9. Sanchez then activated his emergency alarm, and several officers responded, including Smith and defendant Sergeant Duncan. Id. Plaintiff was then handcuffed and escorted to the medical clinic to treat his injuries. Id.

As Plaintiff was being treated for his injuries, Duncan asked Plaintiff what happened, and Plaintiff explained the entire incident, that he had informed Sanchez of the threat prior to the altercation and that Sanchez pepper sprayed him without provocation. Id. Duncan acknowledged Sanchez had contacted him prior to the altercation and apprised him of the situation, but that he was preoccupied with other matters and had no time to deal with Plaintiff's issue. Id. As a result of the assault committed by inmate Frost, Plaintiff suffered a "busted" nose and deep laceration under his left eye that required several stitches. Id. Plaintiff was taken to a hospital outside the institution (Plaintiff believes it was Kern Valley Medical Center), and a CAT scan revealed a blown out orbit in his left eye. Id. Plaintiff had to endure several weeks of pain and discomfort because the pepper spray caused an infection to set in the laceration. Id. Plaintiff received minimal follow-up medical care after the incident, even after submitting multiple medical requests. Id. at 10.

On August 14, 2010, Sanchez issued Plaintiff a rules violation report ("RVR") for "fighting." Id. Sanchez fabricated the RVR, stating Plaintiff was engaged in combative behavior, which required use of the pepper spray. Id. As they were both complying, Sanchez pepper sprayed Plaintiff through the foot port on the cell door. Id. Smith and Pelayo also falsified their "Crime Incident Reports, stating they witnessed Plaintiff fighting with his cellmate, in order to cover-up the excessive force by Sanchez. Id. at 10-11, 16-17. On August 26, 2010, Lieutenant S. Henderson held a hearing for the RVR. Id. at 51-52. At the hearing, Sanchez stated that when he arrived at the cell door, it appeared that inmate Frost was the aggressor and Plaintiff appeared to be blocking the blows from Frost by swinging his arms. Id. at 51. Lt. Henderson found Plaintiff not guilty of the charge of fighting due to Sanchez's statement and the medical reports, which noted that Frost was not injured and Plaintiff received a cut and swelling on his left eye. Id. at 52.

On August 23, 2010, Plaintiff filed an inmate appeal staff complaint. Id. at 13. On September 13, 2010, Sanchez told Plaintiff that he had read Plaintiff's staff complaint, that it did not reach its destination, and that Sanchez has friends and Plaintiff's complaint will get nowhere at KVSP. Id. Plaintiff did not file any other grievance while at KVSP, for fear of reprisal or retaliation by the individuals identified in the complaint. Id. On December 3, 2010, Plaintiff was transferred to California State Prison Los Angeles County. Id. On January 22, 2011, Plaintiff submitted a second staff complaint. Id. at 13, 57-58. On March 15, 2011, the KVSP Appeals Coordinator rejected and cancelled Plaintiff's appeal due to time constraints. Id. at 13, 56. In the appeal rejection notice, Plaintiff was notified that he could not appeal a rejected appeal, but he could file a separate appeal on the cancellation decision. Id. at 56.*fn1

Plaintiff alleges failure to protect and excessive force against Sanchez. Id. at 14-16. Plaintiff alleges failure to protect against Smith and Duncan. Id. at 14-15. Sergeant Duncan had a duty to instruct Sanchez and / or Smith to immediately separate Plaintiff from his cellmate. Id. at 15. Plaintiff alleges defendants acted in "collusion" to cover-up the assaults against Plaintiff by inmate Frost and Officer Sanchez. Id. at 17.

For relief, Plaintiff seeks compensatory damages in the amount of $250,000 and punitive damages of $100,000. Id.

III. Legal Standard and Analysis for ...


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