United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS [ECF Nos. 32, 34, 41]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Tony Hernandez is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendant Martinez for use of excessive force on March 12, 2010, and May 3, 2011.
On May 2, 2014, Defendant filed a motion for judgment on the pleadings. Plaintiff filed an opposition on May 22, 2014, and Defendant filed a reply on May 29, 2014. On June 11, 2014, Plaintiff filed a surreply to Defendant's reply. Defendant opposes Plaintiff's filing of surreply and requests that it be stricken as unauthorized by the Local Rules of this Court.
ALLEGATIONS OF SECOND AMENDED COMPLAINT
On March 12, 2010, Martinez conducted her medication rounds and stopped at Plaintiff's cell. Plaintiff immediately advised Martinez that his father and nephew were to planning to visit him and his father was terminally ill. The visitation was initially supposed to take place on Facility-A; however, Plaintiff's placement in Facility-D posed a danger to his family members because inmate Alvin Flowers was also housed in the facility. Inmate Flowers is incarcerated for the death of Plaintiff's niece. Plaintiff requested Martinez to notify the head psychologist and custody staff of an "enemy conflict."
Defendant Martinez then left and returned without warning and began viewing Plaintiff in various stages of "undress." While Plaintiff was putting on his underwear and after he pulled them up he noticed that Martinez, a female correctional officer, was present. Martinez advised Plaintiff the head psychologist was not working and he would have to wait until tomorrow. Plaintiff sat down on his bed and put on his socks and shirt. Martinez left the area and gave no indication that she had viewed Plaintiff's changing his clothes.
However, Martinez went to the Sergeant A. Todd and provided false information that the Plaintiff had purposefully exposed his genitals to her while she was conducting the mandatory mental health rounds. Plaintiff was subsequently escorted from his cell to a holding cell next to the nurse's station. Plaintiff attempted to speak with Sergeant A. Todd, however he refused. Because of Plaintiff's placement in the holding cell, he had no means to notify his family of the enemy conflict. Plaintiff was charged and found guilty of a Rules Violation Report for indecent exposure.
In order to protect his family of the enemy situation, Plaintiff "hung" himself by ripping off a piece of his t-shirt, wrapping it tightly around his neck, and tying it while Defendant Martinez watched. Plaintiff was unable to stand, dropped to the ground, and hit his head. Defendant Martinez emptied an entire can of mace onto Plaintiff's face. Plaintiff alleges that Defendant sprayed him needlessly because Defendant Martinez should have instead set off the alarm for help. Defendant Martinez instead insisted that Plaintiff remove the t-shirt, even though he knew Plaintiff was not able to breath. Plaintiff was taken to Fresno Community Hospital for treatment following the incident.
On April 9, 2010, Defendant Martinez threatened to mace Plaintiff again and beat him "until he cried like a little girl." On May 3, 2011, Defendant Martinez carried out his threat to again mace Plaintiff, when he requested legal photo copies of legal documents. Defendant Martinez opened the tray slot to Plaintiff's cell and threw the briefs into the cell. When Plaintiff reached down to pick up the papers, Defendant Martinez sprayed Plaintiff's back with mace and directed the chemical agent onto the legal documents, stating "you[re] going to remember this day walked to the top of the stairs yelling I need a team." Plaintiff's cellmate began screaming that he could not breathe because he was allergic to make. In response, Plaintiff began kicking the door to get medical and staff attention. Defendant Martinez then returned to continue spraying more mace into the cell through the food tray slot. The mace covered Plaintiff's face, chest, and back.
Defendant Martinez attempted to have Plaintiff's cellmate confirm that Plaintiff threatened Defendant Martinez. However, Plaintiff's cellmate responded that Martinez sprayed them for no reason. Defendant Martinez charged Plaintiff with assault on staff. As a result, Plaintiff was found guilty of a 115 Rules Violation Report assault on staff.
DEFENDANT'S MOTION TO STRIKE SURREPLY
As stated above, Plaintiff filed a reply to Defendant's reply ("surreply") on June 11, 2014. Defendant filed a motion to strike Plaintiff's surreply on June 12, 2014, arguing that the surreply is not authorized by the Federal Rules of Civil Procedure or the Local Rules of this Court.
The Local Rules of this Court governing motions in prisoner cases do not provide for the submission of a surreply. Local Rule 230(l). A district court may allow a surreply to be filed, but only "where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief." Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005).
In light of the fact that the instant motion is for judgment on the pleadings and Plaintiff is proceeding pro se, the Court has reviewed Plaintiff's surreply and finds it contains relevant information to the resolution of the instant motion and the Court should exercise its discretion to ...