United States District Court, E.D. California
FOR PLAINTIFF TO: (1) NOTIFY THE COURT THAT HE IS WILLING TO
PROCEED ONLY ON THE CLAIM FOR EXCESSIVE FORCE AGAINST
DEFENDANTS LONGORIA AND FLORES; (2) FILE A FIRST AMENDED
COMPLAINT; OR (3) NOTIFY THE COURT THAT HE WISHES TO STAND ON
HIS COMPLAINT, SUBJECT TO THE COURT ISSUING FINDINGS AND
RECOMMENDATIONS CONSISTENT WITH THIS ORDER (ECF NO.
a civil action filed by Dominic Carter
(“Plaintiff”), a state prisoner proceeding
pro se. This action was initiated by the filing of a
civil complaint in Kings County Superior Court on November
23, 2016 (Case #16-C0379). (ECF No. 1, p. 4). On February 16,
2017, defendants Flores, Godwin, Goree, Longoria, and
Pacillas removed the case to federal court by filing a notice
of removal of action pursuant to 28 U.S.C. § 1441(a).
(Id. at pgs. 1-2). Within the notice of removal,
these defendants requested that the Court screen
Plaintiff's complaint under 28 U.S.C. § 1915A.
(Id. at p. 2). On February 21, 2017, defendant Brown
filed a joinder to the notice of removal and request for
screening. (ECF No. 5). On February 23, 2017, the Court
granted the request for the Court to screen the complaint.
(ECF No. 6). The complaint is now before the Court for
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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
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). “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).
complaint is required to 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.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF'S COMPLAINT
was confined at California State Prison, Corcoran
(“Corcoran”) when the alleged constitutional
violations occurred. Plaintiff names as defendants: 1) M.
Voong (Chief, Inmate Appeal(s)); 2) R. Pimentel (Appeals
Examiner); 3) S. Longoria (Correctional Officer); 4) H.
Flores (Correctional Officer); 5) C. Brown (Correctional
Lieutenant); 6) M. Bejarno (Correctional Lieutenant); 7) R.
Godwin (Correctional Captain); 8) A. Pacillas (Correctional
Counselor II); and 9) D. Goree (Correctional Counselor II).
Plaintiff's allegations follow.
August 5, 2014, Plaintiff entered facility 3A's Classroom
No. 3. He approached a table occupied by inmate Smith, and
had a disagreement with Smith. To deescalate the situation,
Plaintiff walked away from Smith to another table occupied by
other inmates. While at that table, Plaintiff was attacked by
grabbed Smith in an attempt to stop him from assaulting
Plaintiff, and Plaintiff fell to the floor.
Longoria and Flores responded to the alarm. Upon seeing
Defendants Longoria and Flores run into the classroom,
Plaintiff tried to push Smith away, so that Plaintiff could
prone out. However, defendant Longoria pulled out his can of
Oleoresin Capsicum Pepper Spray. He then emptied the whole
can of Pepper Spray on Plaintiff, even though Plaintiff was
defendant Longoria emptied his can of Pepper Spray, he yelled
for defendant Flores to spray Plaintiff (defendant Longoria
stated “spray that fucking Carter!”). Defendant
Flores then emptied his can of Pepper Spray on Plaintiff.
August 7, 2014, defendant Longoria authored a Rules Violation
Report (“RVR”), asserting that Plaintiff violated
California Code of Regulations, Title 15, § 3005(d)(1),
specifically for “Fighting Resulting In The Use of
Force, And SBI.” Defendant Longoria falsely asserted:
“On Tuesday, August 5, 2014, at approximately 0847
hours, while performing my duties as 3A Yard Officer #1, I
was standing in front of facility 3A Education performing
clothed body searches of inmates assigned to Education when
the personal alarm system activated from inside 3A Education.
I immediately yelled, ‘get down' as I responded
into the education area. I approached Classroom #3 and I
observed two (2) inmates fighting at the rear of the
classroom. The inmates were later identified as SMITH
(H-83863/3AO1-119L) and CARTER (J-73232/3AO5-236U). Inmates
SMITH and CARTER were on the floor, repeatedly punching each
other in the face and upper torso area. I entered the
classroom and I ordered inmates SMITH and CARTER to get down
but my orders were ignored as they continued punching each
other in the face. I unholstered my state issued MK9
Oleoresin Capsicum (OC) Pepper Spray canister and from a
distance of approximately six (6) feet, I dispersed one (1)
continuous burst of pepper spray at inmates SMITH and CARTER.
The pepper spray made contact with inmates SMITH and
CARTER's face and head, which was my intended target
area. The pepper spray did not have its desired effect as
inmates SMITH and CARTER continued fighting. Officer FLORES
then utilized his Mk9 pepper spray canister and from a
distance of approximately six (6) feet, administered one (1)
continuous burst of pepper spray at inmates SMITH and CARTER
striking them in the face. The pepper spray had its desired
effect and caused inmate SMITH and CARTER to stop fighting
and assume prone positions….”
was reviewed by Correctional Sergeant J. Gonzales. It was
then classified by Correctional Lieutenant Llamas as a
serious offense and Division “D, ” per California
Code of Regulations, Title 15, § 3323(f)(10).
defendant Brown adjudicated the RVR. Plaintiff entered a not
guilty plea and attested that he walked away to try to calm
the situation, which was supported by Plaintiff's primary
witness Education Teacher D. Huerta's testimony.
Brown found Plaintiff guilty of the false charge. Among other
things, defendant Brown relied on the RVR, which was authored
by defendant Longoria. Defendant Brown failed to assess
Plaintiff's credibility, or the credibility of Huerta.
Defendant Brown also did not consider their testimony that
defendant Brown was not impartial.
29, 2015, Plaintiff appealed defendant Brown's failure to
consider Plaintiff and Huerta's testimony. Plaintiff
asked that the findings for the RVR be dismissed and/or
adjusted by removing the SBI charge from the record.
October 13, 2015, defendants Pimentel and Voong found
sufficient evidence to warrant a modification of the Second
Level Review, which was conducted by defendant Pacillas. They
found that a due process error occurred, and ordered that the
RVR be reissued/reheard. They also ordered Corcoran to direct
the Chief Disciplinary Officer to change the classification
of the RVR to the specific act of “Battery on An Inmate
With Serious Bodily Injury (‘SBI'), ...