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Madrid v. Pease

United States District Court, E.D. California

June 13, 2017

JOHN MADRID, Plaintiff,
v.
P. PEASE, et al., Defendants.

         ORDER 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

         Plaintiff 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.)

         I.

         SCREENING REQUIREMENT

         The 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).

         A 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).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff, 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 PVSP.

         Plaintiff 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.

         Two to 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.

         Once in 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 ...


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