United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
Standards on a ...