United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE A SECOND AMENDED
COMPLAINT OR NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED
ON THE COGNIZABLE CLAIMS IN HIS FIRST AMENDED COMPLAINT (ECF
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. He has consented to the undersigned‘s
jurisdiction. (ECF No. 7.) No other parties have appeared in
October 14, 2015, the Court screened Plaintiff‘s
complaint and found that it stated Eighth Amendment claims
against Defendants Arnett, Gamboa, Potzernitz, Flores, and
Marsh, but no other claims. (ECF No. 8.) Plaintiff was
ordered to file an amended complaint or notify the Court of
his willingness to proceed only on the cognizable claims.
Plaintiff filed a first amended complaint on December 10,
2015. (ECF No. 11.) His first amended complaint is before the
Court for screening.
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, malicious, '' or 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. §
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
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).
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
is detained at California Correctional Institution but
complains of acts that occurred at California State Prison
(''CSP'') in Corcoran, California. He names
the following defendants in their individual and official
capacities: Correctional Sergeants (''CS'')
Jesse Arnett, Helen Gamboa, Joseph Potzernitz and Jesse
Gonzales; Correctional Officer (''CO'')
Hector Flores; Correctional Lieutenants
(''CL'') Marsh and Wentherford; and Does
allegations are not presented chronologically and are
somewhat difficult to follow. In brief summary, Plaintiff
claims that he was improperly denied the use of a wheelchair
as an accommodation for his multiple medical issues. As a
result, he had difficulty moving about the prison and was
unable to participate fully in prison programming. Also as a
result, Defendants subjected him to several assaults. One of
these assaults resulted in Plaintiff being criminally
prosecuted. His more detailed allegations may be summarized
essentially as follows:
has neuropathy, stenosis, and back pain resulting from a slip
and fall down stairs at Riverside County Jail. He has a
chipped vertebra from gunshot wounds and has a bullet lodged
behind his right eye. He has an ear injury that causes
vertigo. He has long standing knee pain.
has been partially disabled or
''DPO'' since 2011. While incarcerated at North
Kern State Prison from 2008 to 2011, Plaintiff purchased a
cane. He also purchased a wheelchair while detained at
Riverside County Jail.
DPO status was revoked following an altercation with other
inmates on February 27, 2013 at Salinas Valley State Prison.
The circumstances regarding the revocation of
Plaintiff‘s DPO status do not involve the Defendants in
this action and will not be addressed further.
Plaintiff’s Transfer to CSP
25, 2013, Plaintiff was transferred from Salinas Valley State
Prison to CSP. Plaintiff‘s wheelchair was not
transferred with him, in violation of the Americans with
Disability Act. Non-party CO Johnson and other unnamed second
watch staff denied Plaintiff the use of a wheelchair because
Plaintiff did not have a chrono. However, Plaintiff could not
obtain a chrono because he did not have a wheelchair to go to
see a specialist.
point, Defendant Wenthenford issued a modification order
allowing Plaintiff temporary usage of a wheelchair upon
Plaintiff‘s request. However, he did not ensure that
this request would be upheld by his subordinates.
The July 2, 2013 Attack
2, 2013, Plaintiff returned to his cell and noticed that his
wheelchair was no longer there. Plaintiff asked to speak with
a sergeant. Non-party CO Johnson lifted Plaintiff and his
wheelchair from behind and shoved Plaintiff into the cell.
Plaintiff collided with the top locker. Non-party CO Ysguima
intervened and closed Plaintiff‘s cell door. Defendant
Gonzales ordered Johnson escorted off the yard.
The July 31, 2013 Incident\
31, 2013, Plaintiff attended the medical clinic and begged
the L.V.N. Nurse to be seen by a doctor due to his extreme
pain. Plaintiff was told to put in a request to be seen.
Plaintiff explained that he had submitted fifteen to twenty
medical requests but still had not been seen. Defendant
Gonzales and others came to the clinic, cuffed Plaintiff
behind the back, and removed him from the clinic in
restraints. Plaintiff and Gonzales began to argue. Gonzales
had Plaintiff‘s cuffs removed and stood in front of
Plaintiff in a fighting stance. Plaintiff sat down and asked
to be given his wheelchair and cane. Gonzales told Plaintiff
that he would never be given a wheelchair. He told Plaintiff,
''If you can‘t walk, crawl. If you can‘t
crawl, scoot.'' Gonzales got on his radio and soon
thereafter, Johnson appeared. Gonzales and Johnson whispered
to each other. Johnson snatched Plaintiff‘s head
forward between Plaintiff‘s knees and he and an unknown
officer lifted Plaintiff to his feet by his arms and wrist.
Plaintiff suffered pain and was unable to move easily for a
The August 2, 2013 Attack
August 2, 2013, while attempting to use the lavatory in his
cell, Plaintiff fell with such force (due to his weight, 266
pounds) that he cracked his skull on the edge of a locker.
repeated ''man-down'' requests, Defendant CS
Helen Gamboa delayed calling for help for 30 minutes, saying
''You don‘t wanta [sic] go man down I promise
you, '' and ''I guess I‘ma [sic] have
to show you.'' Plaintiff had blood on his hands and
head and on the floor, but Gamboa claimed she could not see
custody staff came and found Plaintiff lying on the ground in
pain. Rather than helping Plaintiff, Defendant Potzernitz
asked the tower for riot gear. Five minutes later, Jesse
Arnett (or someone who resembles him) and Potzernitz, who by
then was also in riot gear, jumped on top of Plaintiff and
began to punch, kick and twist Plaintiff‘s left leg at
the ankle trying to break it. Potzernitz finally stopped when
an unknown sergeant told him to stop.
unidentified sergeant directed staff to lift Plaintiff onto a
stretcher. Before doing so, Plaintiff was placed in
mechanical restraints behind his back. The cuffs were too
tight and cut off Plaintiff‘s circulation. Plaintiff
expressed that he was in extreme pain but nothing was done.
After Plaintiff was placed on the stretcher, his weight
applied pressure and cut off circulation to his cuffed hands,
causing pain. The driver of the emergency vehicle drove fast
and hit bumps on the road with the purpose of causing
Plaintiff extreme pain. Plaintiff yelled at him and the
attending female correctional officer to slow down, but he
did not. The restraints were finally taken off at the request
of the doctor at the hospital. Plaintiff received a CT scan.
Dr. Edgar Clark made a ''favorable
diagnosis.'' Plaintiff expressed his fear of second
watch staff to Dr. Clark. He explained that he would be
subjected to more violent assaults if he was not provided a
wheelchair. He told Clark that his facility physician would
not consider his accommodation request. Nevertheless, Clark
returned Plaintiff to his facility and referred him to his
facility medical clinic regarding his accommodation request.
informed non-party CO Medsen that he feared further assaults
from second watch staff. Upon his return to CSP, Plaintiff
also informed Defendant Wenthenford and mental health staff
(non-parties Stokes and Spokes) regarding his fears.
Plaintiff informed Wenthenford that he had a bullet behind
his right eye and that he could be seriously injured if he
sustained an injury to his eye. His fears were not taken
seriously. All of these individuals denied Plaintiff‘s
request to be placed in administrative segregation
remained in pain and requested a wheelchair to get around.
His request was denied, in violation of CDCR policy. Without
a wheelchair, Plaintiff was unable to attend religious
services. Plaintiff also remained without food for six days
despite being told by CO Doe that he would be
CO Doe also denied Plaintiff the use of a wheelchair.
The August 10, 2013 Attack
August 10, 2013, Plaintiff was interviewed by Defendant CS
Gonzales regarding Plaintiff‘s request for a cane and a
wheelchair. Gonzales is not a doctor. During the interview,
CS Gonzales said, ''You already know how I feel about
you. I think you‘re a piece of shit.''
Plaintiff advised Gonzales of the bullet behind his eye and
his fears of further injury if the bullet was dislodged
during an assault. Plaintiff‘s request for a wheelchair
was denied. Gonzales also vacated a modification order that
had been issued by Defendant Wenthenford, which had kept
Plaintiff close to program facilities and services and
afforded him a lower bunk on a lower tier. Plaintiff contends
that Gonzales should have granted Plaintiff‘s request
for a wheelchair on a temporary basis until Plaintiff could
be seen by medical staff.
speaking with Gonzales, Plaintiff stood outside the door to
Defendant Marsh‘s office and asked to speak with Marsh.
Defendants Potzernitz and Flores, as well as other officers,
told Plaintiff to leave because Marsh did not want to talk to
him. Plaintiff was escorted out of the office.
that day, Plaintiff was informed by Arnett, Gamboa, and
Flores that he was being moved to a new cell. Plaintiff
questioned the move. He did not believe he was compatible
with his new cell mate due to his cell mate requiring a lower
bunk and ''some other issues that derived from the
streets.'' Nevertheless, Plaintiff was handcuffed and
moved to the new cell. Once in the new cell, Plaintiff
brought his hand to the food port to be uncuffed. After one
cuff was removed, Plaintiff turned slightly so that the other