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Anderson v. Virga

United States District Court, E.D. California

March 28, 2017

TIM VIRGA, et al., Defendants.



         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought under 42 U.S.C. § 1983. He asserts in his amended complaint Eighth Amendment claims for excessive force and deliberate indifference to safety. The gist of the amended complaint is that defendants unlawfully assigned him to a prison yard with known gang members, two of whom brutally assaulted him. Plaintiff also alleges that defendant Villasenor unlawfully shot him with a less-lethal block gun in quelling the disturbance.

         Villasenor moves to dismiss plaintiff's excessive force claim on the ground that (1) it is not cognizable and that (2) qualified immunity shields him from it. Careful review of the pleadings shows that plaintiff has failed to state a cognizable excessive force claim. Accordingly, as discussed below, the motion to dismiss should be granted.

         I. Background

         A. Factual Allegations

         At all relevant times, plaintiff was a state inmate at California State Prison, Sacramento (“SAC”). Villasenor worked at SAC as a correctional officer. ECF No. 23 at 13.

         On November 11, 2013, plaintiff was on the B-3 Special Housing Unit exercise yard (“the yard”). Id. The yard was “an integrated yard with seven other violent prisoners[, ] all [of whom were] validated gang members of different gangs.” Id. at 4. Villasenor was assigned to the yard as a security watch in the gun tower, id., which was located approximately twenty-five feet from the assault described below, ECF No. 35-1 at 3; ECF No. 37 at 3, 9.

         As plaintiff was doing push-ups, two inmates attacked him. Id. They held him down, kicked him in the face, and stabbed him approximately fifteen times. Id. Plaintiff broke free and stood up. Apparently, plaintiff started running away from one of the attackers, who struck or stabbed him in the back a couple of times before retreating back. ECF No. 23 at 79; ECF No. 37 at 7. Villasenor ordered plaintiff and his attackers to the ground, immediately shooting plaintiff once in the upper back/shoulder area with a sponge round from a 40 mm block gun. ECF No. 23 at 13, 49, 53. Plaintiff and his attackers assumed prone positions and there was no further incident. Id. at 79.

         According to plaintiff, despite watching the entire attack, Villasenor deliberately failed to intervene. See Id. at 13, 16. He also alleges that Villasenor and other correctional officers “thought [he] was a shot caller and . . . was smuggling contraband into prison with other correctional officers.” Id. at 17. Therefore, the officers “made sure inmates knew [he] was doing business with [them] to attempt to ensure [the inmates] would kill [him].” Id. Plaintiff adds that, when his attackers did not kill him, Villasenor “shot [him] for good measure.” Id.

         B. Procedural Background

         Plaintiff filed a complaint under § 1983, ECF No. 1, which he amended on March 16, 2016, ECF No. 23. In a screening order, it was determined that plaintiff stated a “potentially cognizable” Eighth Amendment excessive force claim against Villasenor. ECF No. 26 at 1.

         Villasenor moves to dismiss, generally arguing that plaintiff failed to state a claim for excessive force because he used minimal force in a good-faith effort to restore discipline. ECF No. 35 at 5. Villasenor asserts that he did not know who started the altercation and that he had to order all of the inmates down to stop it from escalating. Id. at 6-7. He further asserts that neither plaintiff nor the attackers complied with his order, which compelled him to fire one round at plaintiff's buttocks, stopping the altercation. Id. at 7. Additionally, Villasenor argues that he is entitled to qualified immunity because he (1) did not violate plaintiff's constitutional rights and, in any event, (2) the law was not clearly established that his conduct was unlawful. Id. at 8-9.

         Plaintiff argues in opposition that Villasenor maliciously and sadistically shot him to harm him, not in a good-faith effort to restore discipline. ECF No. 37 at 2. He asserts that Villasenor knew that he was the victim and not the aggressor in the attack, and that he was not behaving aggressively when Villasenor shot him. Id. at 3-4, 11. He also contends that he could not comply with Villasenor's order to get down because the assailants were attacking him and doing so would have endangered him. Id. at 6, 8. Plaintiff also disputes that Villasenor aimed for his buttocks and contends that he aimed for his head. Id. at 9. Additionally, plaintiff insists that Villasenor had a motive to allow him to be stabbed and beaten and then to shoot him. Id. at 12. According to plaintiff, Villasenor harbored ill-will toward him because: (1) Villasenor's brother worked at the prison as the “head gang cop” and plaintiff reported him for stealing his phone book during a raid; (2) one of Villasenor's coworkers was the son of a correctional officer whom plaintiff had allegedly bribed to bring him cell phones; and (3) Villasenor knew plaintiff's attackers longer than he knew plaintiff. Id. at 5, 12.

         II. Standards on a ...

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