Dixon v. Oleachea

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, currently incarcerated at California State Prison Corcoran, who proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and a request for appointment of counsel. Plaintiff has paid the filing fee. Plaintiff challenges the alleged conduct of prison officials during plaintiff’s incarceration at California State Prison Sacramento (CSP-SAC). This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

         Upon screening plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a), the undersigned finds that it states potentially cognizable claims for relief against defendants Oleachea, Sandoval and Hall, but not against defendants Lieber or Virga. The court accords plaintiff the option of proceeding on his original complaint, as construed herein, or filing a First Amended Complaint in which he attempts to add one more claim against defendant Oleachea.

         I. Screening of Plaintiff’s Verified Complaint

         A. Legal Standards for Screening Prisoner Civil Rights Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

         Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555).

         To survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly at 557).

         A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         B. Plaintiff’s Allegations

         Plaintiff’s allegations focus on the challenged conduct of defendant D. Oleachea, a CSP-SAC correctional officer (CO). On February 6, 2011, plaintiff was visiting with his wife in the prison visiting area. After about 45 minutes, plaintiff was called to the podium and directed to the strip out area, where he was searched. The search was triggered by a report from defendant Oleachea, who was operating the surveillance camera that scanned the visiting room, that plaintiff appeared to take and/or hold a $20 bill in his hand. The search of plaintiff failed to reveal any money or other contraband. Nevertheless, plaintiff’s visit was terminated and he was issued a Rules Violation Report (RVR) (Log No. B-11-02-013), alleging “Possession of Contraband (Money).” See ECF No. 1 at 16.^[1] Plaintiff wrote a letter of complaint to defendant D. Lieber (“the Chief Disciplinary Officer and Associate Warden in charge of reviewing all administrative appeals, ” see Complaint (Cmplt.), ECF No. 1 at 2, ¶ 4), who allegedly never responded. Plaintiff was found “Not Guilty” at the subsequent disciplinary hearing held March 7, 2011.

         Thereafter, on November 6, 2011, plaintiff was again visiting with his wife in the prison visiting area. While plaintiff was having his picture taken, defendant Oleachea called plaintiff and his wife aside and told them that the visit was being terminated because plaintiff’s wife was dressed inappropriately. Plaintiff asked if his wife could put on her sweater, but Oleachea said no. Plaintiff told Oleachea that he would not leave the visiting area without speaking with the sergeant, Oleachea’s supervisor. Plaintiff walked back to his assigned visiting table and sat down. Oleachea instructed plaintiff’s wife to stand by the stairs and then walked over to plaintiff. Oleachea pulled out his pepper spray and instructed the other visitors to move.

         Defendant R. Sandoval, another CO, came to plaintiff’s table and stood next to Oleachea. Sandoval reportedly told Oleachea “four times to put that away (his pepper spray) and . . . that we don’t need that out here.” Cmplt., ECF No. 1 at 7, ¶ 30. As plaintiff attempted to explain to Sandoval why he wanted to speak with the sergeant, defendant Oleachea “out of nowhere and unprovoked, sprays plaintiff directly in the face while plaintiff sat in his seat.” Id. at ¶ 32. Plaintiff avers that he then “calmly gets up and walks in the opposite direction of defendant Oleachea, ” but Oleachea “sprays a second burst of pepper spray into the back of plaintiff’s head.” Id. at ¶¶ 33-4. Plaintiff then “changes directions, walking towards the right to get away, ” but Oleachea “sprays plaintiff a third time to the right side of plaintiff’s face and yells get down!” Id. at ¶¶ 35-6. “As plaintiff was getting down, defendant Oleachea sprays plaintiff a fourth time.” Id. at ¶ 37. Plaintiff was then cuffed, taken to a holding cage, decontaminated and examined, then returned to his cell.

         Plaintiff’s wife, then age 64, was “cordoned off in the visiting room control booth suffering the effects of the pepper spray while the other civilian visitors were sent outside on the patio to get fresh air.” Id. at ¶ 40. Plaintiff’s wife complained to CO Mirlohi that she had asthma and was having trouble breathing. Mirlohi initially failed to respond, but then called for CO Hammon to escort her to a bunker.

         Plaintiff was issued an RVR (Log No. B-11-11-020) for “Refusing a Direct Order.” See ECF No. 1 at 39. Plaintiff was found guilty. Id. at 43. However, the hearing officer found that the incident had not warranted issuance of an RVR, and reduced the matter to an administrative CDC-128A Custodial Counseling Chrono. Plaintiff was counseled and reprimanded.

         Plaintiff avers that he filed and exhausted a prison administrative grievance challenging the conduct of defendant Oleachea on November 6, 2011. Id. at ¶ 52; see also ECF No. 1 at 2. Plaintiff’s exhibits include the statements of visitors to the prison that day who reported to officials that Oleachea’s response was unprovoked by plaintiff. See e.g. id. at 28. Plaintiff was interviewed in March 2013 by a member of CDCR’s Legal Affairs Office concerning the November incident. Plaintiff was thereafter served with a subpoena to be a witness before the State Personnel Board in proceedings against Oleachea, but “on the account of defendant Oleachea accepting something with lesser consequences, plaintiff did not have to appear at the hearing.” Id. at ¶ 51.

         Plaintiff alleges that he has been diagnosed him with chronic dry eye syndrome due to the pepper spray incident. Plaintiff suffers from blurred vision, sensitivity to light, and persistent eye irritation and pain, which require the use of artificial tears. Plaintiff alleges that he suffers nightmares about being pepper sprayed, which cause him to have difficulty breathing. Plaintiff states that he has been a mental health patient since 1994, is diagnosed with manic depression and major depression, and is prescribed mood stabilizers.

         Plaintiff asserts federal constitutional claims of excessive force, retaliation, failure to protect, failure to investigate, and supervisory liability, and state law claims of assault and battery, negligence, intentional infliction of emotional distress, and supervisory liability. Plaintiff seeks the expungement of his disciplinary conviction, compensatory and punitive damages, and such other relief as the court may find appropriate .

         C. Screening of Plaintiff’s Complaint

         1. Excessive Force Claim Against Defendant Oleachea

         Plaintiff alleges that defendant Oleachea’s use of pepper spray against him was malicious and unnecessary to maintain order. The statements of various witnesses to the incident support plaintiff’s allegation that Oleachea’s challenged conduct was unnecessary to control plaintiff. These allegations state a cognizable claim against defendant Oleachea for use of excessive force in violation of the Eighth Amendment’s proscription against cruel and usual punishment.^[2]

         2. Failure to Protect Claim Against Defendant Sandoval

         Plaintiff alleges that defendant Sandoval failed to prevent Oleachea’s use of pepper spray against plaintiff, despite the opportunity to do so. Pertinent allegations of the complaint include Sandoval’s physical proximity to Oleachea and plaintiff, Sandoval’s repeated statements to Oleachea to put the pepper spray away, and reported witness statements.^[3] These allegations state a cognizable claim against defendant Sandoval for his alleged failure to protect plaintiff in violation of the Eighth Amendment.^[4]

         3. No Cognizable Claim Against Defendant Lieber

         The allegations of the complaint against defendant Lieber, then CSP-SAC Associate Warden, are limited to the following, ECF No. 1 at 6, ¶¶ 13-5:

¶ 13. On 2/2/11 [sic], plaintiff wrote Associate Warden, defendant D. Lieber and requested that she intervene and investigate the false allegations against plaintiff made ...