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Sinegal v. Verduzco

United States District Court, S.D. California

August 4, 2014

H. VERDUZCO, Corrections Officer; C. ORTEGA, Corrections Officer; GARCIA, Sergeant; DELGADO, Lieutenant; E. SILVA, Lieutenant; R. DIAZ, Corrections Officer/Sergeant; J. AGUIRRE, Corrections Officer; G.J. JANDA, Assistant Warden; GUEVARA, Corrections Officer; CHIEF DEPUTY WARDEN/HIRING AUTHORITY; MIRELES, Corrections Officer, Defendants.


ROGER T. BENITEZ, District Judge.

Ramon Ladale Sinegal ("Plaintiff"), a state prisoner currently incarcerated at California State Prison, Los Angeles County, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. In his First Amended Complaint ("FAC"), Plaintiff alleges correctional officers violated his constitutional rights in August and September 2011, and again in January 2011, when he was incarcerated at Calipatria State Prison ("CAL"). Specifically, Plaintiff claims Defendants subjected him to cruel and unusual punishment, failed to protect him, retaliated against him for filing prison grievances, and violated his due process rights by denying him contact visitation privileges.

I. Procedural History

On March 15, 2012, this Court dismissed Defendants Garcia, Delgado, Silva, Janda, Guevara, Chief Deputy Warden and Mireles. See Mar. 15, 2012 Order (ECF Doc. No. 7) at 3. The Court directed the U.S. Marshal to effect service upon the remaining Defendants. Id. On July 11, 2012, Defendants Diaz, Ortega and Verduzco filed a Motion to Dismiss Plaintiff's FAC pursuant to FED.R.CIV.P. 12(b)(6). (ECF Doc. No. 16.) Defendant Aguirre later filed a Joinder to this Motion. (ECF Doc. No. 31).

The Court granted in part, and denied in part, Defendants' Motion. See Mar. 11, 2013 Order (ECF Doc. No. 32) at 25. The Court dismissed Plaintiff's claims for damages against Defendants in their official capacities, denied Defendants Verduzco and Ortega's motion to dismiss Plaintiff's retaliation and excessive force claims, dismissed Plaintiff's due process claims and dismissed all claims against Defendants Diaz and Aguirre. Id. Verduzco and Ortega, as the only remaining Defendants, were ordered to file an Answer to Plaintiff's FAC. Id.

Verduzco and Ortega filed their Answer to Plaintiff's FAC on March 18, 2013. (ECF Doc. No. 34.) On December 20, 2013, Defendants filed their Motion for Summary Judgment. (ECF Doc. No. 53.) Plaintiff filed his initial Opposition to Defendants' Motion on January 31, 2014. (ECF Doc. No. 65.) Additional discovery was permitted and therefore, the Court permitted Plaintiff to file a supplemental Opposition on April 14, 2014. (ECF Doc. No. 79.) Defendants filed their Reply to both Oppositions on May 5, 2014. (ECF Doc. No. 87.)

While this case was randomly referred to the Honorable Jan M. Adler pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither oral argument nor a Report and Recommendation regarding the disposition of Defendants' Motion is necessary. See S.D. CAL. CIVLR 72.3(a); S.D. CAL. CIVLR 7.1.d.

II. Facts

A. Plaintiff's Factual Allegations

Plaintiff alleges that for four years prior to August 2010, he was permitted "regular" visits[1] with his girlfriend, Brandi Jackson without complaint. (FAC at 3.) Once Verduzco became a "visiting officer, " however, Plaintiff claims Jackson became "a victim of constant harassment, " in that "for several months, as soon as Verduzco would see [] Jackson in the foyer of the visiting room, " he would arrange for the officer in charge to have her assigned to specific seats "so he could constantly watch and stare.'" This made their visits "very uncomfortable." ( Id. )

On August 22, 2010, Jackson was visiting and while she and Plaintiff were cooking food, Verduzco approached them and told Plaintiff wanted to speak with him in the "strip" room. ( Id. ) Once there, Plaintiff claims Verduzco "falsely accused [him] of excessive contact, " and terminated the visit. ( Id. ) Defendant Diaz, whom Plaintiff claims was the Sergeant on duty, provided Plaintiff with a CDC 887-B "Notice of Visitor Warning/Termination/Suspension/Denial/Revocation" Form indicating Plaintiff and Jackson's visitation privileges were terminated "for the day."[2] ( Id. at 10; Pl.'s Ex. A.)

When Jackson returned for a visit on September 4, 2010, Plaintiff claims Ortega, Verduzco's "friend, " "would not allow [the] visit until he contacted Sgt. Diaz. Sgt. Diaz, however, "instructed the officers to allow [the] visit[], " and "all went well, " according to Plaintiff, because Verduzco did not work that day. (FAC at 3.)

When Jackson visited Plaintiff the next day, September 5, 2010, Verduzco was present and assigned her a seat at Table 30. When Plaintiff arrived in the strip room, however, Ortega told him he was not allowed any visits because he had been "found guilty of a rule[s] violation." ( Id. ) Plaintiff objected, claiming "there had not been a hearing on it yet, " and reminded Ortega that Sgt. Diaz had cleared him for visits just the day before. ( Id. ) Plaintiff alleges Ortega responded by saying, "I know, but I can't go against my partner." ( Id. )

At the same time, Plaintiff alleges Verduzco approached Jackson and "lied" to her, stating that Plaintiff had been found guilty of a rules violation and was not allowed visits. ( Id. ) Jackson complained to Verduzco's superiors, but the visit was terminated because Verduzco also "lied to Lt. Zills, " and told him Plaintiff had been found guilty of a rules violation. ( Id. at 3-4.)

On September 6, 2010, Plaintiff was called into Lieutenant Reis' office "for a hearing on the RVR (Rules Violation Report) that C/O Verduzco wrote." ( Id. at 4, 22; Pl.'s Ex. C.) Verduzco was present. ( Id. ) During this hearing, Plaintiff alleges Reis told him he would be "issuing a chrono" terminating Plaintiff's contact visits. ( Id. ) Plaintiff objected on grounds that "he was not given [an] opportunity to request certain evidence, " and complained that the "decision was already made" before he arrived. ( Id. ) Plaintiff claims Verduzco smiled and replied to Reis, "I told you!" When Plaintiff asked Reis if he could tell him what happened, Reis refused, and replied: "[I] don't want to hear the story three times." ( Id. )

On the next day, September 7, 2010, Plaintiff filed a CDC 602 Inmate/Parolee Appeal, alleging to have been "falsely accused of excessive contact" and to have had his visitation privileges wrongfully suspended by Verduzco on both August 22, 2010 and September 5, 2010. (FAC, Pl.'s Ex. C at 21-22). In the September 7, 2010 CDC 602, Plaintiff specifically complained that Verduzco "went over the Sgt.['s] authority" when cancelling the September 5, 2010 visit because "it's up to the ranking custody officer on duty or the official in charge of visiting to restrict visits." ( Id. at 4 & Ex. C at 21-22.)[3] Plaintiff also requested that Sgt. Reis be prohibited from hearing "the RVR [which was] pending, " pursuant to Cal. Code Regs., tit. 15 § 3320(h). ( Id. at 21-22.) This CDC 602 was granted at the informal level of review on September 8, 2010, with a notation that "Lt. Reis will not be permitted to conduct the hearing for the RVR [Plaintiff] rec'd in C' visitation on 8/22/10 in accordance with CCR 3320(h)." ( Id. at 21.)[4]

Jackson also "filed several complaint to Sacramento concerning the constant harassment of H. Verduzco." (FAC at 4, 24-34; Pl.'s Ex. D.)

On January 8, 2011, sometime after Plaintiff's privileges must have been restored, he was again visiting with Jackson when he was "approached by H. Verduzco and told to go to the strip room." ( Id. at 4.) When Plaintiff entered, Ortega stood in front of him, and Verduzco stood to his side. Aguirre "was seated in a chair." ( Id. ) Verduzco told Plaintiff to "strip out" and that his visit was terminated. ( Id. ) Plaintiff claims Verduzco and Ortega's "presence was hostile, as if their plan was to assault [him]." ( Id. ) "Recognizing the situation, " Plaintiff claims he "sat on the ground" and requested to speak with a "superior officer." ( Id. )

Plaintiff then claims that "without warning, " Verduzco sprayed him with pepper spray "until the can was empty." ( Id. ) Once Verduzco was done, Plaintiff claims he ordered Ortega to spray him. ( Id. ) Plaintiff further alleges that "as [he] was seated on the ground, C. Ortega slung Plaintiff to his stomach, " "slammed his knee down on Plaintiff's back, " and "aggressively placed Plaintiff in restraints." ( Id. ) Plaintiff contends that "all the while, [he] never posed a threat, nor resisted." ( Id. ) Plaintiff contends that even the "named officers['] incident reports show "that there was not a need for force, " and that he was pepper sprayed after he sat on the ground. ( Id. at 5; 47-51, Pl.'s Ex. F.)

Plaintiff claims Verduzco and Ortega "used excessive force without any penological justification" and "acted maliciously and sadistically' for the purpose of punishment to cause harm" on January 8, 2011. ( Id. at 4.) Plaintiff also contends Verduzco and Ortega's actions on January 8, 2011, including the filing and prosecution of a "falsified" rules violation based on the incident, were acts taken "in retaliation" for the staff complaints both he and Jackson had previously filed against them. ( Id. at 4, 5, 13-34, 53-59; Pl.'s Exs. B-D, G.)

Plaintiff further claims that while Aguirre "did not participate in attacking Plaintiff" on January 8, 2011, he "did nothing to intervene, " and was "deliberately indifferent" in failing to ...

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