United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE A FIRST AMENDED
COMPLAINT OR NOTIFY THE COURT OF WILLINGNESS TO PROCEED ON
CLAIMS FOUND TO BE COGNIZABLE (ECF NO. 1) THIRTY DAY
Michael Jacques is proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's complaint,
filed on August 31, 2016.
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
or malicious, ” that “fail to state a claim on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
is in the custody of the California Department of Corrections
and Rehabilitation and is currently incarcerated at
California State Prison, Sacramento. The incidents alleged in
the complaint occurred while Plaintiff was housed in the
receiving and release section at North Kern State Prison
(“NKSP”) in Delano, California. Plaintiff names
the following individuals as Defendants in their individual
capacity: correctional officer J. Lopez, Jr., sergeant J.
Vasquez, correctional officer J. Garza, correctional
investigative service agent K. Joseph, correctional officer
R. Razo, correctional officer S. Monge, correctional officer
J. Gonzalez, nurse Dennis Barrios, and nurse G. Aro.
August 24, 2015, Plaintiff was transferred from Los Angeles
County Jail to NKSP. When Plaintiff arrived at NKSP and was
in the receiving and release area immediately after the strip
search, Plaintiff was placed in mechanical restraints due to
policy and procedure. Defendant Barrios interviewed Plaintiff
about his medical health and medications and documented
Plaintiff's contact corrective lenses, contact casing,
contact solution, and medicated lotion. Defendant Barrios
then asked Plaintiff where the medicated lotion was so he
could document it. Defendant Gonzalez overheard this and
stated, “Oh I think Correctional Officer J. Lopez Jr.
threw away the lotion, but I'll ask him.” Defendant
Gonzalez asked Defendant J. Lopez, Jr. (“Defendant
Lopez”) about the lotion. Defendant Lopez replied,
“This aint no fucking medicated lotion. This is fucking
regular lotion.” Plaintiff then stated, “This
aint no fucking regular lotion. This is fucking medicated
was nearly completed with his medical evaluation when
Defendant Barrios asked Plaintiff to retrieve the medicated
lotion so that he could see it and document it for the doctor
for a later scheduled evaluation. As Plaintiff walked out of
the medical portion in mechanical restraints, Defendant Lopez
struck Plaintiff twice in the right side of his facial area
and once on the left side of his facial area and then slammed
Plaintiff on the ground. While Plaintiff was on the ground,
Defendant Lopez choked Plaintiff which cut off
Plaintiff's air supply and placed himself on the upper
back of Plaintiff after Plaintiff told him several times that
he could not breathe.
Plaintiff was recovering on the floor from being dazed, he
was stepped on, stomped on, kneed, and punched by Defendants
who were later identified by incident reports. Defendant
Vasquez was the supervisor and a bystander present during the
attack and did nothing to stop it. He had a “realistic
opportunity” to prevent it, but he failed to do so.
Defendant Vasquez's actions and inactions as a supervisor
and sergeant supervisor caused and contributed to the attack.
Defendant Vasquez ordered Defendant Razo to retrieve leg
restraints and place them on Plaintiff. Defendant Razo placed
the leg restraints on Plaintiff so tight that it restricted
the blood flow and cut into the skin causing physical
discomfort and his legs to go numb.
Vasquez ordered the correctional officers to transition the
handcuffs from the front of Plaintiff to the back. Defendant
Athie took hold of Plaintiff's left hand and Defendant
Garza took hold of Plaintiff's right hand and they
transitioned the handcuffs so that they were behind
Plaintiff. The handcuffs on both wrists were so tight that
they restricted blood flow and cut into the skin causing
physical discomfort and his hands to go numb.
Joseph interviewed Plaintiff, but she refused to loosen or
remove the overly tight handcuffs that were cutting into his
skin. She also refused to photograph all of Plaintiff's
injuries. While Plaintiff was in a holding cage without
bathroom necessities such as a sitting stool, sink, or
toilet, Defendant Barrios, who was the only nurse on duty,
noted some but not all of Plaintiff's injuries,
particularly his head. Defendant Barrios noted cuts to the
right side of the mouth, indention marks to the right wrist,
a reddened area with indention marks, a cut to the left
wrist, indention marks and reddened area to the left wrist,
indention marks and reddened area to the right ankle, and
another reddened area with indention marks. Plaintiff
contends that Defendant Barrios conspired to falsify reports
and/or alter statements and official records to cover up the
incident and so the events would be brought to light.
Plaintiff stayed in the holding cage with no siting stool or
bathroom necessities for 8 hours until he was transferred.
Plaintiff had refused to be transferred until all of his
injuries were documented.
Aro, a nurse, then documented Plaintiff's injuries.
Defendant Aro's report reflected that Plaintiff had
swollen areas to the right side of the head, ear lobe, right
inner leg, and left elbow, bruising to the mouth, a cut and
reddened area to the right arm, and bruising or discolored
area which was swollen to the left side of the mouth.
Defendant Aro did not give or offer Plaintiff any medical
treatment, even after Plaintiff requested it due to the pain.
alleges that Defendants Lopez, Gonzalez, Athie, Garza, Monge,
Razo, and Vasquez conspired to file a false and intentionally
misleading incident report against Plaintiff as an attempt to
cover up and/or justify their excessive use of force.
alleges that he received injuries to the right side of his
head, right ear lobe, right and left sides of his mouth, the
inside of his right arm, the inside of his right leg, left
elbow, right wrist and left wrists, right ankle, and his leg
just above his right and left ankles. Specifically, the right
side of his head, right ear lobe, right inner leg, and left
elbow were swollen, his mouth was bruised and swollen, and he
had a cut and redness on his right arm. He also suffered from
dizziness and headaches. Plaintiff also alleges that the
violation of his rights caused emotional and psychological
distress and pain, severe depression, humiliation, fear, and
brings claims for excessive force, failure to intervene,
conspiracy to file fraudulent and misleading incident and
medical reports, deliberate indifference to a serious medical
need, and conditions of ...