Petillo v. Peterson

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

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint is before the Court for screening. Plaintiff has consented to the jurisdiction of a magistrate judge.

         I. SCREENING REQUIREMENT

         The in forma pauperis statute provides, “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).

         II. PLEADING STANDARD

         Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. PLAINTIFF’S ALLEGATIONS

         At all relevant times Plaintiff was an inmate housed at California Correctional Institution (“CCI”) in Tehachapi, California.^[1] He names as Defendants CCI Correctional Officers (“CO”) R. Harris and J. Gonzalez and Lieutenant (“Lt.”) J.L. Peterson. Plaintiff’s claims can be summarized essentially as follows:

         On November 4, 2012, CO Gonzalez placed handcuffs on Plaintiff tightly and roughly escorted him from his cell to outside the building in which he was housed. Once outside, CO Gonzalez forcefully and without provocation slammed Plaintiff violently onto the pavement, causing injury to Plaintiff’s left shoulder, left elbow, left knee, and the left side of his face. This incident left Plaintiff stunned and bleeding. CO Gonzalez, who is approximately 200 pounds, then sat on Plaintiff’s head, and he pressed his right knee hard into Plaintiff’s face and head. Plaintiff was only 143 pounds at the time.

         Non-party CO Weathers observed the incident from the yard gun tower and activated the alarm button. Within seconds, a number of prison guards came running to where CO Gonzalez and Plaintiff were.

         One of the guards, CO Harris, struck Plaintiff twice with a steel baton, again without provocation. Plaintiff was still on the ground at this point. Though this Defendant was yelling “Stop resisting, ” Plaintiff was not resisting because he was still stunned from the body slam by CO Gonzalez.

         Following this incident, Plaintiff was taken to the medical unit where CO Harris directed Plaintiff to face the wall. When Plaintiff complied, CO Harris punched Plaintiff twice in the facial/head area and said, “Nigger you’re were [sic] in my building I’ll kill you.”

         In the medical unit, Plaintiff was placed in a small cage for “[at] least an hour or two, may be longer” with the tight handcuffs before someone removed them.

         After the assault, “strange things began to happen, my mail start disappearing & tampered with.” Plaintiff does not assert any facts related to this allegation.

         An investigation of the assault occurred, and Plaintiff was interviewed by non-party CO Crotty who told Plaintiff that a video of the assault did not exist. Plaintiff later learned that a video taken from the yard tower did exist.

         On December 13, 2012, Senior Hearing Officer CO Peterson conducted a hearing concerning the November 4, 2012, assault. Plaintiff requested the presence of CO Crotty at the hearing. CO Peterson’s denial of this request violated Plaintiff’s right to a fair trial. As to the video of the assault, CO Peterson also denied Plaintiff’s request to view it. Instead, CO Peterson viewed the video outside of the presence of Plaintiff, claiming that it showed Plaintiff dipping his shoulder toward one of the officers. In light of this evidence, CO Peterson found Plaintiff guilty of assault on a peace officer. Plaintiff denies making any threatening conduct towards either CO Gonzalez or CO Harris and asserts that his due process rights were violated because CO Peterson was not a fair hearing officer.

         Plaintiff attempted to exhaust his administrative remedies regarding the December 13, 2012, hearing, but was threatened by an unidentified lieutenant, who said, “You should drop the 602 complaint if you know what’s best for you.” This lieutenant said that Plaintiff won’t leave in one ...