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Vitrano v. Wong

United States District Court, C.D. California

February 17, 2015

D. WONG, et al., Defendants.


SUZANNE H. SEGAL, Magistrate Judge.



On December 15, 2014, Plaintiff Thomas P. Vitrano ("Plaintiff"), a prisoner in federal custody proceeding pro se, filed a civil rights complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) (the "Complaint"). On December 23, 2014, pursuant to Plaintiff's request, the Court granted leave for Plaintiff to proceed in forma pauperis.

Congress has mandated that district courts initially screen civil complaints filed by prisoners seeking redress from governmental entities or employees. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the Complaint is dismissed with leave to amend.[1]



Plaintiff alleges that the following defendants - all Federal Bureau of Prisons employees at Federal Correctional Institution Victorville Medium II ("Victorville" or the "prison") - violated his civil rights: (1) D. Wong, a medical staff member; (2) Ms. Maschimo, variously described as a health services administrator or supervisor; (3) Warden Louis Milusnic; (4) Officer Rojos; (5) Officer Martinez; (6) Lieutenant F. Wilcutt; (7) Ms. Tran, a nurse; (8) "Unknown Officer, AKA Big Show'"; (9) "Captain John Doe"; (10) Correctional Officer Miller; (11) Antonia Rogers, described as a nurse; (12) Correctional Officer Rameriz; (13) "Unknown Transport Officer on 1-16-2014"; Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 3 of 10 Page ID #:158 (14) "Unknown Transport Lieutenant on 3-27-2014"); (15) Officer Rios; (16) Ms. Y. Douchand, a unit manager; (17) Ms. H. Biagiante, a case manager; and (18) "Ms. Edwards, " a counselor. (Complaint, Dkt. No. 1, at 2, 29, 38, 39, 55, 62, 63, 78, 79, 94, 95, and 108).[2] Plaintiff sues all of the Defendants in their individual and official capacities. Id.

Plaintiff's claims arise from several events relating to his custody.[3] Plaintiff asserts that, on November 1, 2013, prison officials transferred him to a medical unit for treatment, following an attack by another inmate. (Id. at 5). While examining Plaintiff's fractured hip and wrist, defendant Wong "fondled [Plaintiff's] penis." (Id.) When Plaintiff complained, Wong deliberately shook and twisted his leg in an attempt to cause greater pain. (Id.) Plaintiff subsequently underwent hip replacement surgery at a hospital outside the prison. (Id. at 108). Correctional and transport officers caused Plaintiff further injury while returning him to prison in "black box" handcuffs. (Id. at 63-65). Plaintiff was wheelchair-bound when he returned to Victorville, but officials assigned him to a non-handicapped-accessible cell in the facility's security housing unit ("SHU"), denied access to a shower for "over 30 days, " and denied access to outdoor recreation for nearly four months. (Id. Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 4 of 10 Page ID #:159 at 40-41). Prison officials never informed Plaintiff why he had been placed in segregation. (Id. at 56). Plaintiff was also denied emergency medical care for an asthma attack (Id. at 30), and prevented from using a prescribed sleep apnea device. (Id. at 79). When Plaintiff complained of his treatment, officials "retaliated" by changing his security classification from "low" to "medium." (Id. at 108-09). Officials also deliberately delayed sending mail to this Court, allegedly violating Plaintiff's constitutional rights and possibly impeding a habeas petition already before the Court.[4] (Id. at 94-96).

It is difficult to construe the exact nature of Plaintiff's claims, but they include allegations that Defendants violated his First, Fourth, Fifth, Sixth and Eighth Amendment rights. Plaintiff also claims injuries due, inter alia, to prison officials' "medical negligence and deliberate indifference" (Id. at 29), the "tort of assault and battery" (Id. at 6-7), "sexual abuse" (Id. at 6), "infliction of emotional distress" (Id.), and gross negligence by supervisory personnel (Id. at 8).



Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's Complaint due to defects in pleading. Pro se litigants in civil rights cases must, however, be given leave to amend their complaints unless it is absolutely clear that the Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 5 of 10 Page ID #:160 deficiencies cannot be cured by amendment. Lopez, 203 ...

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