United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED WITH THE THIRD AMENDED COMPLAINT, ON PLAINTIFF'S CLAIMS AGAINST DEFENDANTS SHERWOOD, COONTZ, AND FELIX FOR EXCESSIVE FORCE; AGAINST DEFENDANT SHERWOOD FOR RETALIATION; AND AGAINST DEFENDANT COONTZ FOR FAILURE TO PROTECT PLAINTIFF; AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS ACTION FOR FAILURE TO STATE A CLAIM (Doc. 27.)
OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
Alejandro Jose Morales ("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 filed the Complaint commencing this action on October 1, 2013. (Doc. 1.) On November 8, 2013, the court issued an order striking the Complaint for lack of Plaintiff's signature, with leave to amend. (Doc. 8.) On December 2, 2013, Plaintiff filed the First Amended Complaint, bearing his signature. (Doc. 9.) The court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and issued an order on March 5, 2014, requiring Plaintiff to either file a Second Amended Complaint or notify the court of his willingness to proceed with the claims found cognizable by the court. (Doc. 12.) On April 23, 2014, Plaintiff filed the Second Amended Complaint. (Doc. 19.) On June 23, 2014, Plaintiff filed a motion for leave to amend, which was granted by the court on June 24, 2014. (Docs. 22, 26.) On July 3, 2014, Plaintiff filed the Third Amended Complaint, which is now before the court for screening. (Doc. 27.)
II. SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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 is required to 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 (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). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF THIRD AMENDED COMPLAINT
Plaintiff is presently incarcerated at Ironwood State Prison in Blythe, California. The events at issue in the Third Amended Complaint allegedly occurred at the California Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Correctional Officer (C/O) Hezekiah Sherwood, C/O Greg Coontz, L. Gilera (R.N.), Nicki Gray (R.N.), and C/O Ruben S. Felix (collectively, "Defendants"). Defendants were all employed by the California Department of Corrections and Rehabilitation (CDCR) at CCI at the time of the events at issue. Plaintiff's factual allegations follow.
Plaintiff arrived at CCI on or about July 13, 2012. Approximately a minute after arriving at his housing assignment, defendant Sherwood called to Plaintiff, "Hey, you long hair faggot, come here." (Third Amended Complaint (3ACP) at 6 ¶1.) Plaintiff complied and defendant Sherwood ordered Plaintiff outside. Once outside, defendant Sherwood put on his black leather gloves and ordered Plaintiff around the corner of the outside dorm. Out of sight from anyone else, defendant Sherwood ordered Plaintiff up against the wall, kicked Plaintiff's legs apart, and slammed his head and face into the wall with enough force to chip his front tooth. When Plaintiff told Sherwood about the tooth, Sherwood told Plaintiff that "if he did not keep his mouth shut, him and his boys' would f*** him up good.'" (Id.)
Plaintiff intended to file an inmate grievance against Sherwood, "but was told by other inmates that they would in fact beat him." (Id. at 6 ¶2.) The other inmates told Plaintiff that there were correctional officers at CCI who still practiced "Green Wall" and beat inmates just for mouthing off. Plaintiff took Sherwood's threat seriously and did not file a staff complaint for fear of being beaten.
On or about July 23, 2012, after suffering severe pain from his chipped tooth, Plaintiff filed a health care appeal to have the tooth fixed. The appeal was partially granted at the First Level of Review, but nothing was done, so Plaintiff resubmitted the appeal on or about September 13, 2012. The appeal was returned for no reason on September 13, 2012 and September 17, 2012. Defendant Sherwood reviewed the appeal prior to returning it and confronted Plaintiff, accusing him of snitching on him. Plaintiff tried to tell Sherwood that he did not snitch and only wanted his tooth fixed, but Sherwood called Plaintiff to the center of the dorm and started slapping him in the face. Plaintiff endured the assault and then went outside to get some fresh air.
As Plaintiff came around the corner to Briggs Hall, defendant Sherwood called him back, accusing him of trying to snitch to the Correctional Lieutenant. Before Plaintiff could speak, Sherwood pulled out his O.C. pepper spray, sprayed Plaintiff in the face, and took him to the ground. After Plaintiff was placed in handcuffs and posed no threat, Sherwood started kicking and punching Plaintiff. Defendant Greg Coontz was there and looked on, refusing to intervene.
After Plaintiff was placed in medical care, defendants Sherwood, Coontz, and Felix starting beating him again, because Sherwood convinced them that Plaintiff had assaulted him. Plaintiff was left in a holding cell for over an hour before he was allowed to have the pepper spray washed off his face. Plaintiff could not breathe and passed out several times. Plaintiff requested medical attention and told defendant R.N. Gilera that "his eyes were burning, " but his request was overlooked when "he was seen after the beating." (3ACP at 7 ¶5.) Plaintiff could not identify the officers or medical staff present because he could not open his eyes. Plaintiff washed his face with toilet water because he could not locate the sink.
In administrative segregation, Plaintiff coughed up blood and passed out several times because he could not breathe. He complained to the medical staff and correctional officers and was refused medical treatment for eight days. Plaintiff was seen by defendant R.N. Gray, and then forced to wait fifteen days longer before being seen by a medical doctor. On October 2, 2012, Plaintiff had x-rays taken of his chest, and on October 16, 2012, Plaintiff submitted another Health Care Services Request Form complaining of shortness of breath.
Plaintiff alleges that defendant Sherwood's actions placed his life in grave danger because several months before, Plaintiff underwent open chest surgery for severe pneumonia, and Plaintiff had not fully recovered. Medical staff knew about Plaintiff's prior surgery when he arrived at CCI.
Sherwood falsified a Rules Violation Report (RVR) in an attempt to cover up or justify the pepper spray and beating. The Senior Hearing Officer, after hearing the RVR, reduced the charge from "Assault on Staff" to "Resisting Staff, " a charge not alleged in the RVR.
Another inmate, who had seen Plaintiff being beaten and pepper-sprayed, called Plaintiff's family and informed them. The family called the prison and an attorney. The attorney advised them to ...