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Harris v. German

United States District Court, E.D. California

May 8, 2017

DEVONTE B. HARRIS, Plaintiff,
v.
HUMBERTO GERMAN, et al., Defendants.

          ORDER DETERMINING THAT PLAIN TIFF'S COMPLAINT IS NOT BARRED BY STATUTE OF LIMIT ATIONS ORDER DISCHARGING COURT'S ORDER TO SHOW CAUSE ISSUED ON FEBRUARY 24, 2017 (ECF NO. 15.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 28, 2015. (ECF No. 1.)

         On December 18, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 7.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

         On March 14, 2016, Plaintiff filed the First Amended Complaint. (ECF No. 8.) On February 24, 2017, the court issued an order to show cause, requiring Plaintiff to file a response within thirty days showing why his claims in the First Amended Complaint should not be dismissed as barred by the statute of limitations. (ECF No. 15.) The court reasoned that it appeared on the face of the First Amended Complaint that the four-year statute of limitations for Plaintiff's injuries began to run, at the latest, on August 28, 2011, and Plaintiff did not file this lawsuit until more than four years later, on September 28, 2015. On March 16, 2017, Plaintiff filed his response.[1] (ECF No. 16.)

         On March 22, 2017, the court issued an order requiring a further response to the order to show cause. (ECF No. 17.) Plaintiff was ordered to notify the court whether he is serving a life term or a term for less than life. (Id.) On April 7, 2017, Plaintiff filed his response. (ECF No. 19.)

         On April 6, 2017, the court issued a second order requiring a further response from Plaintiff. (ECF No. 18.) Plaintiff was ordered to notify the court if he was serving a term for life without the possibility of parole, or life with the possibility of parole.[2] (ECF No. 18.)

         II. PLAINTIFF'S ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

         Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), presently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff brings this civil rights action against defendant prison officials employed by the CDCR at CSP. Plaintiff names as defendants Correctional Officer (C/O) Humberto German, C/O Philip Holguin, C/O Summer Cordova, C/O L. Borgess, C/O R. Womack, C/O D. Lovelady, C/O D. Menzie, C/O D. Botello. C/O S. Pano, C/O R. Leal, C/O R. Burnitzki, Sergeant (Sgt.) J. Martinez, Sgt. W. Rasley, and Sgt. J. Hubbard (collectively, “Defendants”).

         Plaintiff's allegations follow. On February 24, 2011, Plaintiff was housed in the Security Housing Unit (SHU). At about 1:15 p.m., correctional officers were releasing prisoners to the exercise modules. C/Os German, Holguin, Menzie, Lovelady, and Botello skipped Plaintiff's cell during yard and then ignored him when he called them to ask why. C/O Womack was working in the control booth. C/O German and Holguin came back and released Plaintiff for yard last. Plaintiff stripped out and C/O German kept asking him, “What's the problem?” (ECF No. 8 at 11 ¶9.) C/O German continued to hold Plaintiff's clothing as he stood naked, apparently expecting an answer. Plaintiff said, “I'm done stripping out, can I have my clothes back?” (Id.) Plaintiff got dressed and C/O German handcuffed him. As they escorted Plaintiff to the yard, C/O Holguin placed Plaintiff against the wall by the exit door of the building and began pressing him up against the wall. C/O German said, “You are getting your yard, so what's the problem?” (Id. ¶10.) Plaintiff said that C/O German was pressing him hard into the wall unnecessarily. C/O German said shut up or you are not going to receive yard. Plaintiff said he knows the law and has family who care, so he doesn't care what they do. German said shut up and don't talk. They exited the building and walked towards the yard cages. Sgt. Martinez saw them from the track holding Plaintiff aggressively and asked, “What's going on?” (ECF No. 8 at 12 ¶11.) Plaintiff began to tell him and C/O German jerked Plaintiff to a standstill and said, “I thought I told you not to talk.” (Id.) At seeing this Sgt. Martinez said to just escort Plaintiff back to his cell. Upon entering the building, German and Holguin slammed Plaintiff's face into the divider of their office window. Holguin held Plaintiff's face sideways against the window. German kicked Plaintiff's legs apart, making him do the splits. Holguin shouted, “Fuck the law and fuck your family.” (Id. ¶12.) German said, “What you wanna do” over and over. (Id.) C/O German threatened to take Plaintiff to the ground. Sgt. Martinez, C/O Menzie, C/O Lovelady, and C/O Botello entered the building. C/O Womack witnessed from the control booth. They did not say or do anything while Holguin had Plaintiff's face pressed against the window and German had Plaintiff's legs unnaturally spread apart. Plaintiff said he just wanted to go to yard, and German said, “You are not going to yard, so where do you want to go, back to your cell?” (ECF No. 8 at 13 ¶15.) Plaintiff said he wanted to talk to the Lieutenant for an excessive force interview. Martinez said, “You'll get what you got coming, you'll get your excessive force interview.” (Id.) German and Holguin escorted Plaintiff back to his cell. Plaintiff suffered knots on his forehead, a swollen cheek, pain in the neck, pain on the right side of his chest, and pain in the small of his back. On February 26, 2011, Sgt. Hubbard interviewed Plaintiff and documented his injuries on video. Sgt. Rasley operated the video camera. Plaintiff was medically evaluated by a nurse. On February 27, 2011, an RN evaluated Plaintiff. On February 29, 2011, another RN evaluated him. At some point, Hubbard and Rasley destroyed the video documenting his injuries while they were still visible on February 26, 2011. Plaintiff filed a prison appeal. On May 16, 2011, two sergeants took another videotaped interview of Plaintiff, but his injuries had already healed. They claimed to have lost the February 26, 2011, video.

         On March 10, 2011, C/O German denied Plaintiff his breakfast in retaliation for the excessive force allegations Plaintiff made against him. German refused Plaintiff's inmate request form asking why.

         On April 18, 2011, C/O Cordova and C/O Borgess retaliated against Plaintiff for the allegations he made against their coworkers German and Holguin. They denied Plaintiff breakfast and lunch, and then falsified his segregation record, saying they had delivered both meals to Plaintiff. Later that morning, C/O Menzie escorted the nurse. When the nurse delivered Plaintiff's medication, Plaintiff held the food port on his cell and told Menzie he wanted to see the Sergeant about his breakfast and lunch being withheld. He continued escorting the nurse. Holguin came to Plaintiff's cell to see if he wanted to go to a disciplinary hearing. Plaintiff refused because he was holding the food port. Holguin summoned Sgt. Martinez who ordered Holguin to pepper spray Plaintiff to secure the food port. Holguin pepper sprayed Plaintiff and Plaintiff released the food port and went to the middle of his cell, turning his back. Holguin put his pepper spray through the food port and began spraying Plaintiff in the back of his head, neck, and back. Plaintiff suffered severe burning sensations and chest pain. C/O Borgess and another C/O escorted Plaintiff to the hospital to be evaluated. Borgess and Cordova doctored Plaintiff's segregation records to falsely report that he had refused his breakfast and lunch. Plaintiff was moved to a different housing unit in the SHU.

         On August 28, 2011, C/O Holguin and C/O Pano came to Plaintiff's housing unit to escort him to the yard. They conducted an unclothed body search, and then handcuffed Plaintiff behind the back, and they began walking outside toward the yard cages. Holguin told Plaintiff to pull up his boxers, which was impossible because Plaintiff was handcuffed behind his back. Plaintiff told Holguin to pull his eyes up. Holguin then began escorting Plaintiff to the rotunda of his housing unit. There was a cage located there and while guiding Plaintiff into it, Holguin shoved Plaintiff into the wall, causing pain in his shoulder. Holguin then secured the cage and left. C/O Lovelady and C/O Burnitzki walked by and asked Plaintiff what was going on. Plaintiff said that Holguin had used excessive force against him and the Sergeant should be notified. They took no action regarding this matter. Afterward, Holguin came to the rotunda to take Plaintiff back to his cell when yard time was over. Holguin, Burnitzki and C/O Leal took Plaintiff to his cell but did not have the control booth C/O close the cell door. They came all the way into the cell with Plaintiff. Burnitzki and Holguin began pushing Plaintiff back and forth to each other several times. Holguin then pushed Plaintiff into the wall, jammed his left arm into Plaintiff's back, and used his right hand to press Plaintiff's face against the wall, while Burnitzki pulled on the handcuffs from behind. Holguin told Plaintiff, “You're not hit, you are going to stop disrespecting me and I don't care about any lawsuit.” (ECF No. 8 at ...


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