United States District Court, E.D. California
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:
ΒΆ 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 ...