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Keith Wayne Sekerke, Cdcr #V-15331 v. v. Kemp

March 12, 2013

KEITH WAYNE SEKERKE, CDCR #V-15331, PLAINTIFF,
v.
V. KEMP, CORRECTIONAL OFFICER; A. ANDERSEN, CORRECTIONAL OFFICER; A. LAROCCO, CORRECTIONAL OFFICER; J. LUNA, CORRECTIONAL OFFICER; C. CRESPO, CORRECTIONAL OFFICER; J. MCGEE, CORRECTIONAL OFFICER; G. SAVALA, CORRECTIONAL; LIEUTENANT; E. GARCIA, CORRECTIONAL CAPTAIN, DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(6) (ECF Doc. No. 14)

In this case, Keith Wayne Sekerke ("Plaintiff"), a prisoner currently incarcerated at the California Correctional Institution in Tehachapi, is proceeding in pro se and in forma pauperis pursuant to 28 U.S.C. § 1915(a) and the Civil Rights Act, 42 U.S.C. § 1983.

In his Complaint, Plaintiff alleges Defendants, all California Department of Corrections and Rehabilitation ("CDCR") officials at Richard J. Donovan Correctional Facility ("RJD"), violated his Eighth and Fourteenth Amendment rights on April 1, 2011 by using excessive force against him, failing to adequately treat his pepper spray exposure, and fabricating incident reports afterwards in order to justify a prison disciplinary conviction against him for assault on a peace officer. (Compl. at 4-7.) Plaintiff further alleges Defendants conspired against him in violation of 42 U.S.C. § 1985 and § 1986. (Id. at 8.)

Defendants have filed Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6) (ECF No. 14). Plaintiff has filed a Response in Opposition (ECF No. 15), to which Defendants have filed a Reply (ECF No. 17). In addition, the Court permitted Plaintiff to file a Sur-Reply (ECF No. 20). The Court has determined the matter is suitable for submission on the papers, and has held no oral argument. See S.D. CAL. CIVLR 7.1(d)(1).

I. Factual Allegations

Plaintiff divides his Complaint into three separate counts, each arising on, or as the result of, an incident which occurred at RJD on April 1, 2011. (Compl. at 1, 4, 7, 8.)

In "Count 1," Plaintiff claims his Eighth Amendment rights were violated on that day when, after he left his cell to go the yard, several fellow inmates informed him that Defendant Correctional Officers Larocco and Crespo were "trashing [his] cell because [his] cell mate went to yard wearing unauthorized clothing and would not cooperate by turning it in." (Id. at 4.) Plaintiff claims he "tried to talk to them to ask them not to punish [him] for what [his] celly ha[d] done," but Defendant Andersen, another Correctional Officer, "warded [him] off [by] threatening [him] with pepper spray." (Id.) Plaintiff then complained to Defendant Luna, a Sergeant, but "he would not help or intervene." (Id.)

Plaintiff then admits he "planned to make a point in return by going into their office and trashing it." (Id.) So, "after yard recall, [Plaintiff] ran into their office, shut the door," and blocked it with his foot while he "reached out and threw everything on the desk to the floor." (Id.) Plaintiff then alleges to have removed his foot from the door and "got on [his] stomach with [his] hands behind [his] back on the floor." (Id.) Plaintiff claims "the whole reason [he] blocked the door was to insure that no physical violence occurred," and that he "had no intentions whatsoever at any type of physical violence." (Id.) Instead, Plaintiff claims he "only wanted to do what they did to [him]" and he "figured as long as [he] got down, no violence would occur." (Id. at 4-5.)

Plaintiff now "regret[s] that error in judgment," and claims the actions which followed violated his Eighth Amendment rights because Defendants responded in an "unjust, unwarranted, malicious, sadistic, cruel and deliberate" way. (Id. at 5.) Specifically, Plaintiff claims Defendants Kemp and Andersen entered the office, and Kemp "put his right elbow onto [his] back and began punching [him] in [his] left ribs with his left hand." (Id.) Kemp then "got back up and out of the way while C[orrectional] O[fficer] Andersen at point blank range sprayed [Plaintiff] with ... O.C. pepper spray in the face and body." (Id.) "Then, [] Kemp started beating [him] with his expandable baton." (Id.) Defendant Crespo "stood and held the door open while all this happened." (Id.)

Plaintiff then claims he was "dragged out by [his] feet." (Id.) Defendants McGee and Larocco arrived, and escorted him "out of the building to the holding cages outside." (Id.) During the escort, Plaintiff claims to have asked Defendant McGee "if he would please take [Plaintiff] to a shower so [he] could wash off the O.C. pepper spray." Plaintiff admits he was permitted to rinse his eyes in a drinking fountain, "but it didn't help." (Id.)

Once he was placed in a holding cage, Plaintiff claims Defendant Larocco "had [him] strip naked and conducted a naked strip search outside in full view of several female staff." (Id. at 5-6.) "Several hours later," Plaintiff claims Larocco took him to Ad-Seg, and Plaintiff "asked again to be allowed to shower," but Larocco "wouldn't let [him]." (Id. at 6.) Plaintiff alleges he was not permitted to shower until April 4, 2011, and to have suffered four days of "burning on [his] skin, face, hands, arms and body" due to his O.C. exposure. (Id.)

In "Count 2," Plaintiff alleges his "Fourteenth Amendment due process" rights were violated when Defendants Andersen, Crespo, Kemp, McGee, and Larocco "fabricated stories and ... their [incident] reports" following the April 1, 2011 incident. (Id. at 7.)*fn1 Specifically,

Plaintiff refers to his own Exhibit D, which is a CDCR Form 837-A, Crime Incident Report Log No. RJD-210-11-04-0166, completed by Correctional Lieutenant Ortiz, (id. at 20-25), and supplemented by CDCR Form 837-C Staff Reports filed by Defendants Andersen (id. at 26-27), Crespo (id. at 29), Kemp (id. at 30-31), and McGee. (Id. at 34.) Plaintiff contends these report are "fabricated" insofar as they report he "sw[u]ng [his] fists [or] kick[ed] at anyone," (id. at 7), because he was "on [hi]s stomach with [his] hands behind [his] back on the floor," at the time Defendants Kemp and Andersen entered the office. (Id. at 4.) In support, Plaintiff points to his own Exhibit E, which includes a copy of CDC 115 Rules Violation Report Log No. F2-11-093, charging him with assault on a peace officer in violation of CAL. CODE REGS., tit. 15 § 3005(d)(1). (Id. at 46.) During his disciplinary hearing, another inmate named Swan testified that Plaintiff "got down into a prone position before staff entered the office and did not swing or kick at staff." (Id. at 47) (emphasis added). Nevertheless, Plaintiff claims he was found guilty of assault on a peace officer, referred to ICC for program review and a SHU term consideration, and assessed a 61 loss of behavioral credit based on "false allegations and fabricated reports." (Id. at 7, 48.)

In "Count 3," Plaintiff alleges Defendants Andersen, Crespo, Kemp, McGee, and Larocco "all conspired and fabricated [their] reports charging [him] with false charges" in order to "obstruct the due course of justice" pursuant to 42 U.S.C. § 1985. (Compl. at 7-8.) Plaintiff further contends Defendants Savala, Luna and Garcia "had knowledge of the conspiracies and did not do anything about it," and thus, are liable under 42 U.S.C. § 1986. (Id. at 8.)

Plaintiff requests relief in the form of $200,000 in general and punitive damages, as well as a permanent injunction appointing a "federally employed / appointed supervisor" who "is not answerable to the State to insure ... inmates' constitutional rights are protected," the installation of "surveillance cameras at all areas of the institutions recording at all times," a "full RICO investigation into CDCR's custody staff," and modifications to CDCR regulations prohibiting "strip[] searche[s] in view of the opposite sex," governing the use of O.C. pepper spray, and requiring "adequate" decontamination protocols. (Id. at 10-11.)

II. Defendants' Motion to Dismiss

Defendants seek dismissal pursuant to FED. R.CIV.P. 12(b)(6) on grounds that Plaintiff's excessive force allegations against Defendants Kemp, Andersen, and Crespo are barred by Heck v. Humphrey, 512 U.S. 477 (1994), he has failed to state any Eighth Amendment claim as to Defendants McGee and Larocco, he has failed to state a "due process claim for falsified disciplinary reports," and his allegations of conspiracy are "vague" and "lack factual support." See Defs.' Mem. of P&As in Supp. of Mot. to Dismiss (ECF No. 14-1) (hereafter "Defs.' P&As") at 3-7.

A. FED.R.CIV.P. 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference ...


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