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Jackson v. Nino

United States District Court, E.D. California

June 4, 2014

RICHARD JACKSON, Plaintiff,
v.
MIKE PALOMBO and R. NINO, Defendants.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)

BARBARA A. McAULIFFE, Magistrate Judge.

Findings and Recommendations

I. Screening Requirement

Plaintiff Richard Jackson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint, filed on June 27, 2013, is currently before the Court for screening.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, 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).

Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss , 572 F.3d at 969.

III. Discussion

A. Case Number 1:10-cv-01129-SKO, Jackson v. Palombo

On June 23, 2010, Plaintiff filed case number 1:10-cv-01129-SKO, Jackson v. Palombo, et al., in the United States District Court for the Eastern District of California. Plaintiff sued Mike Palombo, R. Niino and S. Meza.

On June 16, 2011, Plaintiff filed a first amended complaint. In the amended complaint, Plaintiff alleged that on July 9, 2009, during a mandatory unclothed body and cell search, Defendant Palombo got mad because Plaintiff was slow taking off his clothes. Defendant Palombo failed to realize that Plaintiff utilized a four-legged metal walker with 25 screws in his left leg and lower ankle with a steel 10 inch rod from surgery. Defendant Palombo placed Plaintiff in hand cuffs waist chain body restraints through the tray slot. When the cell door opened, Plaintiff asked Defendant Palombo to please loosen the tight cuffs. Defendant Palombo said shut up, knocked Plaintiff to the ground and started beating Plaintiff while Defendant Niino held Plaintiff down. Defendant Palombo kicked Plaintiff in the head, side and back. Plaintiff was knocked unconscious and had to be taken to medical in a wheelchair. Once Plaintiff gained consciousness, he noticed that the institution service unit arrived immediately and started taking pictures of Plaintiff's bloody injuries for evidence. The next day, Plaintiff's eyes were puffy and black and he was bloody. Defendant Nurse Meza refused to bandage the open wounds and refused to take him to the hospital. Plaintiff was not provided medical attention and was thrown in the hole.

On April 16, 2012, the Court dismissed Defendant Meza based on Plaintiff's notice of voluntary dismissal. On January 15, 2013, the Court granted summary judgment in favor of Defendants Palombo and Niino on the ground that Plaintiff's excessive force claim against Defendants Palombo and Niino was barred by the favorable termination rule. The Court dismissed Plaintiff's excessive force claim without prejudice and judgment was entered against Plaintiff. Although Plaintiff appealed, the appellate matter was dismissed on April 16, 2013, because Plaintiff failed to perfect the appeal.

B. Case Number 1:13-cv-00986-BAM, Jackson v. Palombo

Shortly after dismissal of his appeal, Plaintiff filed the instant action on June 27, 2013, against Defendants Palombo and Nino for excessive force. Plaintiff alleges as follows: On July 9, 2009, a mandatory unclothed body search was being conducted by KVSP prison guards. During the search, Defendant Palombo got mad at Plaintiff because Plaintiff was slow taking off his clothes. Defendant Palombo failed to realize that Plaintiff utilized a four-legged metal walker, had 25 screws in his left leg and lower ankle and a 10 inch steel rod from surgery. Defendant Palombo placed ...


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