Hilson v. Arnett

          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 NO. 11)

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 the action.

         On 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.

         I. 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, 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. § 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

         Plaintiff 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 1-20.

         Plaintiffs 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^[1]:

         A. Plaintiffs History

         Plaintiff 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.

         Plaintiff has been partially disabled or ''DPO''^[2] 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.

         Plaintiff‘s 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.

         B. Plaintiff’s Transfer to CSP

         On June 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.

         At some 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.

         C. The July 2, 2013^[3] Attack

         On July 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.

         D. The July 31, 2013 Incident\

         On July 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 few days.

         E. The August 2, 2013 Attack

         On 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.

         Despite 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 it.

         Eventually, 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.

         This 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.

         Plaintiff 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 (''ASU'').

         Plaintiff 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 fed.^[4] CO Doe also denied Plaintiff the use of a wheelchair.

         F. The August 10, 2013 Attack

         On 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.

         After 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.

         Later 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 ...