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Conyers v. Rodriguez

United States District Court, S.D. California

June 30, 2017

DWAYNE CONYERS, CDCR #BA-5328, Plaintiff,
v.
CORPORAL RODRIGUEZ, San Diego Sheriff's Dept.; JOHN DOE ONE, San Diego Sheriff's Dept. Officer; JOHN DOE TWO, San Diego Sheriff's Dept. Corporal; JOHN DOE RN, Nurse; TRI CITY MEDICAL CENTER, Defendants.

         ORDER 1) GRANTING MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(E)(1) AND REFERRING CASE TO PRO BONO PANEL PURSUANT TO GENERAL ORDER 596 [ECF NO. 14]AND 2) DENYING MOTION FOR SETTLEMENT DISPOSITION CONFERENCE / SUBPOENA EVIDENCE WITHOUT PREJUDICE [ECF NO. 10]

          HON. LARRY ALAN BURNS United States District Judge.

         DWAYNE CONYERS (Plaintiff), is a prisoner proceeding pro se and currently incarcerated at California State Prison - Los Angeles County (LAC), in Lancaster, California. He first filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on December 15, 2016 (ECF No. 1) in the Central District of California, and on December 22, 2016, he was granted leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) (ECF No. 4).

         After closer review of his Complaint, however, United States District Judge Andre Birotte, Jr. found Plaintiff filed his case in improper venue; therefore, he ordered it transferred to the Southern District of California pursuant to 28 U.S.C. § 1406(a), which is where Plaintiff's claims are alleged to have arisen, and where the Defendants are alleged to be employed. (ECF No. 6.)

         After the case was transferred here, Plaintiff filed a “Motion for Settlement Disposition Conference/Subpoena Evidence” (ECF No. 10), a letter requesting assistance (ECF No. 12), a Motion to Appoint Counsel (ECF No. 14), and supplemental documents and declarations in support of his Motion to Appoint Counsel (ECF Nos. 21, 25). Plaintiff has also filed a First Amended (ECF No. 16), and a Second Amended Complaint (SAC) (ECF No. 23). The SAC is the current operative pleading, and it requires a preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, because Plaintiff is a prisoner proceeding IFP.

         I. Screening per 28 U.S.C. § 1915(e)(2) and § 1915A(b)

         A. Standard of Review

         “At any time, ” and typically “as soon as practicable” after filing, the Court conducts a sua sponte review, and must dismiss a prisoner's IFP complaint, or any portion of it, which it finds frivolous, malicious, failing to state a claim, or seeking damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).

         Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 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.” Iqbal, 556 U.S. at 678.

         “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). However, a liberal construction of the pleading is required in pro se cases, especially those alleging civil rights violations. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (noting court's “obligation … to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)).

         B. Plaintiff's Allegations

         Plaintiff's SAC, and all its previous iterations, contain serious and disturbing allegations of Plaintiff's sexual assault by a San Diego County Sheriff's Department official, identified only as “John Doe Corporal Sheriff, ” and occurring on June 24 or 25, 2016. Plaintiff was a pretrial detainee at the George Bailey Detention Facility (GBDF), at the time, but temporarily transferred to Tri City Medical Center for treatment of a “medical problem.” (ECF No. 23 at 2, 5, 7, 8.)

         Plaintiff claims he was cuffed to a hospital bed and at some point on June 25, 2016, complained “to the officers” that his cuffs were too tight. (Id. at 7.) Plaintiff then contends “two Sheriff's Officers race black, ” came into his room and “look[ed] around” as he was watching TV. (Id.) As one of the officers, identified only as “John Doe One Sheriff, ” “walked to the hallway, ” “Defendant [T]wo, the Sheriff's Corporal[, ] came to [his] bed[, ] looked Plaintiff in[] [the] eyes, ” uttered a racial epithet, and said, “Shut up, I'll ‘blow' your head off, ” and “You['d] better do what I say.” (Id.) Plaintiff then claims “the black Sheriff Corporal touch[ed] Plaintiff['s] ass, ” exposed himself, “started mast[u]rbating, ” and “ejaculated on Plaintiff['s] bedsheets.” (Id.)

         Plaintiff claims after the offending officer left the room, he managed to push the emergency button on the side of the bed.[1] (Id.) “Moments later, ” “a Sheriff's officer unlock[ed] the door so a nurse [could] enter.” (Id. at 8.) Plaintiff noticed “Defendant Corporal Rodriguez” outside the door, watched the two “cross[] each other in the hallway, ” and yelled to Rodriguez that the John Doe Sheriff's Corporal “just sexually assaulted [him].” Plaintiff claims Rodriguez said, “Ok, let me investigate, ” and then told the “RN Defendant John Doe” to give Plaintiff a “be cool shot.” (Id. at 6, 8.) Plaintiff objected, but nevertheless “received” the “unauthorized and illegal shot, ” which “mellow[ed] [him] out, ” and made him fall asleep. (Id. at 8.)

         Plaintiff claims he doesn't know how long he was asleep, but when he woke, he told unidentified detectives about the assault, and suggested they “view the camera inside the room.” (Id.) Plaintiff claims the detectives ...


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