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Saune Livas v. L. Diaz

March 27, 2013

SAUNE LIVAS, PLAINTIFF,
v.
L. DIAZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 12) FIFTEEN-DAY OBJECTION DEADLINE

Findings and Recommendations Recommending Dismissal of Action

I. Screening Requirement and Standard

Plaintiff Saune Livas, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 5, 2012. On March 25, 2013, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff's claims must be facially plausible to survive screening, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Discussion

A. Allegations

Plaintiff, who is currently incarcerated at California State Prison-Corcoran, brings this action against North Kern State Prison Correctional Officers Diaz, Escobedo, and Tobias for use of excessive physical force, in violation of his rights under the Eighth Amendment of the United States Constitution. Plaintiff alleges that the incident resulted in damage to the fistula he had surgically placed in his lower right arm on August 8, 2011, in preparation for dialysis.

Plaintiff alleges that after breakfast on September 26, 2011, he was notified that he needed to hurry and report to the work exchange for an appointment at San Joaquin Hospital. In the process of doing so, Plaintiff was stopped by Defendant Tobias, who questioned him regarding where he was going and directed him to walk all the way back around the yard. Plaintiff tried to explain that he was in a hurry to meet his escorts, who were waiting for him on the yard side of the field.

Defendant Tobias took an aggressive stance and demanded Plaintiff's ID card. Plaintiff held up his ID card, but Defendant Tobias was busy yelling at him and ordered him to turn around to be handcuffed. Plaintiff asked what he did two or three times with no response, and he then turned around to be handcuffed. Plaintiff tried to show Defendant Tobias that he was hurting Plaintiff and possibly damaging the fistula in Plaintiff's lower right arm, but Defendant took that as a sign Plaintiff was trying to hit him.

Defendants Escobedo and Diaz then came over and started grabbing Plaintiff, which caused Plaintiff and Defendant Tobias to lose their balance and fall to the ground. Plaintiff placed his hand in front of his stomach to break his fall. Defendants were on top of Plaintiff, which prevented him from moving his hand from front to behind his back to be handcuffed. Defendants Tobias and Diaz twisted his arm beyond the normal level to restrain someone, and Defendant Escobedo climbed on Plaintiff's upper back, applied his hands under Plaintiff's throat, pulled back, and told Plaintiff to stop resisting. The incident lasted a couple of minutes and once the handcuffs were applied, another officer walked up, pulled out his pepper spray, placed it to Plaintiff's nose, and told him that if he moved, he would be sprayed. Plaintiff was then taken to the program office and on the way, he saw Sergeant Sanchez standing there silently watching what his officers did to Plaintiff.

Plaintiff was seen by Nurse Perez afterward, but he did not see a yard doctor to determine if his fistula was still working. Plaintiff returned to San Joaquin Hospital on December 6, 2011, for a follow-up appointment and he was ...


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