United States District Court, E.D. California
FINDING SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE
AGAINST DEFENDANTS PEASE, MENDEZ, BURNES, THATCHER,
AGUERRALDE, SAUCEDO, AND FORWARDING SERVICE DOCUMENTS TO
PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ANY
REMAINING DEFENDANT AND CLAIMS THIRTY-DAY DEADLINE
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
pursuant to 42 U.S.C. § 1983. This matter was referred
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302. Currently before the
Court is Plaintiff's second amended complaint, filed July
21, 2016 (ECF No. 17.)
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).
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 Cir.2002).
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.
an inmate in the custody of the California Department of
Corrections and Rehabilitation (CDCR) at Salinas Valley State
Prison, brings this action against Defendant correctional
officials employed by the CDCR at Pleasant Valley State
Prison (PVSP), where the events at issue occurred. Plaintiff
names the following individual defendants: Correctional
Sergeant Pease; Sgt. Mendez; Correctional Officer (C/O)
Burnes; C/O Thatcher; C/O Aguerralde; C/O Sauceda.
Plaintiff's claims stem from a use of force incident at
alleges that on February 7, 2010, the Super bowl football
game was on. Plaintiff and his cellmate were in their cell
watching the game, with the volume turned down, and listening
to music. Defendant Burns came out of the Housing Unit 2
floor staff office and instruct Control Pod Officer Black to
turn on the “C-section” flat screen dayroom
television and then sat on the bench to watch the football
game. One of the prisoners asked Defendant Burnes who Burnes
was rooting for in the football game and Burns said the New
Orleans “Saints.” Thereafter, whenever the
Indianapolis Colts scored, the prisoners kicked their cell
doors and yell at Defendant about Defendant Burnes' super
bowl choice. Defendant Burnes then went to Plaintiff's
cell, which is an ADA cell. He kicked Plaintiff's cell
door and yelled for Plaintiff and his cell-mate to turn down
the music. The super bowl was still on and the cell block was
very animated and loud. Plaintiff and cell-mate did not turn
down the music and Defendant Burnes returned to
Plaintiff's cell and kicked the door more violently.
Defendant Burnes then called Defendant Thatcher to come
assist Burnes do a retaliatory cell search. Defendant Burns
violated CDCR policy by calling Defendant Thatcher to help
with the search rather than notifying the program office.
Defendant Burnes instructed the Control Pod Officer Black to
open Plaintiff's cell, number 142. As it slid opened,
Defendant Burnes pushed the cell door further open to force
it into the locking open position. Defendant Burnes then
locked eye contact with Plaintiff and took an aggressive
stance before Burnes stepped into Plaintiff's assigned
cell. Plaintiff alleges that officers are not allowed to
enter a prison cell while that cell is occupied by prisoners.
Based on Burnes demeanor and threatening act of blocking
Plaintiff's assigned cell and stepping into
Plaintiff's cell, Plaintiff attempted to exit the cell by
pushing Defendant Burnes out of the cell. (Doc. 17, p. 11.)
Defendant Burnes then grabbed Plaintiff and lifted him into
the air and body slammed Plaintiff into the cement ground
knocking the wind out of Plaintiff and making Plaintiff
dizzy. Burnes then straddled Plaintiff and started punching
plaintiff in the face with closed fists and Defendant
Thatcher was kicking Plaintiff. Plaintiff did not resist
except to try to protect himself from the punching.
three minutes after being body slammed, prison guard Mitzie
McCollum, Defendant Aguerralde and Defendant Saucedo entered
the cell and worked together to remove Plaintiff's cell
mate, who is wheel chair bound, from holding on to Defendant
Burnes' legs. Defendants Pease and Defendant Mendez
arrived inside Facility C and then assisted Defendant Burnes
off of Plaintiff. Plaintiff then quotes from reports to
allege his facts: Aguerralde crossed Plaintiff's legs and
sat on them to keep them immobile; Defendant Pease assisted
Defendant Burnes off of Plaintiff which resulted in
Plaintiff's attempt to strike Defendant Mendez; and
Plaintiff's momentum turned Plaintiff onto his stomach
and Defendant Pease put Plaintiff in handcuffs.
handcuffs, Defendant Pease braced himself by placing a knee
on top of Plaintiff spine and back and pulled Plaintiff's
arms straight up by pulling on the handcuffs. Plaintiff was
not resisting. While in this position, restrained and hands
raised behind him, Defendant Burnes, Thatcher, Mendez,
Aguerralde, and Saucedo started kicking Plaintiff in the
head, rib cage, groin and testicles, stomach, legs and feet.
Plaintiff was not resisting. Plaintiff alleges that
Defendants continued to kick him and beat him for
approximately a minute or two minutes after he lost
consciousness. Plaintiff was transported via an emergency
life-flight to Fresno, where he remained in a comatose state.
Plaintiff suffered a frontal sinus fracture, left pulmonary
embolus, left flail chest, and ...