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Sienze v. Madera County Sheriff's Office

United States District Court, E.D. California

July 13, 2017

VICTOR M. SIENZE, Plaintiff,
v.
MADERA COUNTY SHERIFF'S OFFICE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM (ECF No. 5) OBJECTIONS DUE WITHIN THIRTY DAYS

         Plaintiff Victor M. Sienze is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 5, 2017, Plaintiffs complaint was screened and an order issued requiring Plaintiff to notify the Court if he wished to proceed on the claims found to be cognizable or file a first amended complaint. Currently before the Court is Plaintiffs first amended complaint, filed June 30, 2017.

         I.

          SCREENING REQUIREMENT

         Notwithstanding any filing fee, the district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). 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)).

         In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiffs legal conclusions as true. Iqbal, 556 U.S. at 678. "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff is 5 feet 9 inches tall, weighs 230 pounds, and is 100 percent disabled. (First Am. Compl. ("FAC") 3, 4[1] ECF No. 5.) Plaintiffs grandson was dropped off at his house by the grandson's father and some friends. (FAC 2.) The grandson was having seizures, hallucinating, and stopped breathing three times requiring Plaintiff to resuscitate him each time. (FAC 2.) Plaintiff suspected drugs but had no way of knowing. (FAC 2.) Plaintiff was unable to take care of his grandson and drive him to the hospital by himself so he called for an ambulance to get medical attention for his grandson. (FAC 2.)

         After the ambulance arrived, Plaintiff helped medical personnel place his grandson on a gurney and the grandson was strapped down with two large straps. (FAC 2.) As the emergency medical personnel placed his grandson in the ambulance, Plaintiff advised them not to try to give his grandson an injection because he was hallucinating and not completely secured to the railing. (FAC 2.) The medical personnel refused to heed Plaintiffs warning and gave his grandson an injection after which they were not able to control him. (FAC 2.) Plaintiff saw the ambulance pull over to the curb and turned his car around to pull up behind them and see what the problem was. (FAC 2-3.)

         The ambulance driver asked Plaintiff to come into the vehicle to assist them in restraining his grandson. (FAC 3.) Plaintiff was told to open the back door and get in the ambulance which he did. (FAC 3.) As he entered the ambulance, Plaintiff put a hand on his grandson's shoulder, bringing his left arm down to the rail and told the driver to secure it. (FAC 3.) The driver refused and told Plaintiff he was calling the Sheriffs Department. (FAC 3.) Plaintiff told the driver that he did not need the sheriff, he needed emergency medical assistance at the hospital. (FAC 3.) The driver called the Sheriffs Department anyway. (FAC 3.) Before the deputies arrived, Plaintiffs grandson was able to get out from under the two large straps securing him on the gurney and was walking around Plaintiffs side yard yelling and hallucinating. (FAC 3.) Plaintiff took his grandson to the ground so that he would not wander off. (FAC 3.)

         When deputies arrived, Plaintiff had his grandson lying on his back and was kneeling over him straddling his waist with both his wrists pinned to the grass. (FAC 3.) Plaintiff was having no trouble keeping his grandson down as his grandson is only 5 feet 11 inches and weighs 157 pounds. (FAC 3.)

         Deputy Kutz drove up to Plaintiffs side yard and quickly walked to where Plaintiff was restraining his grandson. (FAC 3.) Deputy Kutz placed handcuffs on his grandson's right wrist, and Plaintiff helped Deputy Kutz roll his grandson over and place handcuffs on his grandson's other wrist. (FAC 3.) Deputy Kutz asked Plaintiff if this was his grandson three times and Plaintiff answered affirmatively each time. (FAC 3.) The third time, Deputy Kutz asked Plaintiff is his grandson was adopted or something. (FAC 3.) Plaintiff responded that it did not matter and that his grandson needed medical assistance. (FAC 3.)

         Deputy Kutz then summoned the gurney and medical personnel came and his grandson was placed on the gurney face down. (FAC 3.) Deputy Kutz was pressing down on his grandson's backside and low back to try to flatten him out and ambulance personnel were pulling on his legs to help flatten his grandson out on his stomach face down. (FAC 3.) Plaintiff asked Deputy Kutz if his grandson should not be laying on his back not his stomach so he could be strapped to the gurney, but got no response. (FAC 3.) After his grandson was on his stomach, his head was turned to the left so he could breathe. (FAC 3.) Deputy Kutz placed his right knee on the side of Plaintiff s grandson's neck and throat and his grandson showed signs of breathing distress. (FAC 3.) Plaintiff "quickly and strongly" advised Deputy Kutz that prior to his arrival Plaintiff had to resuscitate his grandson three times because his grandson had stopped breathing and that Deputy Kutz was placing his grandson's life in jeopardy because he was struggling to breathe. (FAC 3.) Plaintiff repeated this advisement three times. (FAC 3.) When Deputy Kutz did not respond, Plaintiff asked Deputy Kutz if he was on antibiotic steroids as his reasoning seemed to be cognitively impaired. (FAC 3-4.) Deputy Kutz told Plaintiff to step back and Plaintiff responded that he was not going to stand by and watch Deputy Kutz kill his grandson. (FAC 4.) Plaintiff reached over and pushed Deputy Kutz right shoulder with enough force to push him back off his grandson's neck and throat so his grandson could breathe. (FAC 4.)

         Plaintiff was then attacked by Deputy Kutz who was joined by Sergeant Kerber. (FAC 4.) The officers had Plaintiff face down on the grass trying to force his hands behind his back. (FAC 4.) Plaintiff told the officers that he was 100 percent disabled and his arms did not bend behind his back and they were hurting him. (FAC 4.) He told the officers to handcuff him in front so that he would not be injured. (FAC 4.) Deputy Kutz would not stop until both of Plaintiffs arms were forced behind his back and he was handcuffed tearing his rotator cuffs in both shoulders. (FAC 4.)

         Plaintiff told the officers that it would take more than two of them to carry him to the car. (FAC 7.) After Plaintiff was on handcuffed on the ground with his hands behind his back, Deputy Kutz, Sergeant Kerber, Sergeant Clark, Deputy Roth, and Sergeant Thomas picked Plaintiff up and carried him and put him in the back of the police car feet first causing him further pain. (FAC 4-5.) Deputy Kutz smashed Plaintiffs head into the car door multiple times damaging his neck. (FAC 5.)

         After Plaintiff was handcuffed and lying on the ground, Deputy Kutz went over to Plaintiffs grandson, put his hand on the grandson's nose and with all the weight he could muster smeared his grandson's nose over all over his face. (FAC 6.)

         Plaintiff was trained in emergency first aid in the military and as a first aid responder for the Bureau of Mines and Safety. (FAC 5.) Plaintiff knows how to respond to emergency situations and states that Deputy Kutz did everything wrong and not in accordance with his duties. (FAC 5.) Plaintiff has also served as a legal court appointed conservator and ...


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