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Vickers v. Thompson

United States District Court, E.D. California

July 25, 2017

JEREMIAH D. VICKERS, Plaintiff,
v.
THOMPSON, et al., Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF NO. 56) ORDER DIRECTING CLERK OF COURT TO FILE SECOND AMENDED COMPLAINT (ECF NO. 59) ORDER FINDING SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE AS TO DEFENDANTS AKIN, ALVAREZ, WILLIAMS, AND STELOW, AND FORWARDING PLAINTIFF THE NECESSARY SERVICE OF PROCESS DOCUMENTS FOR COMPLETION AND RETURN WITHIN THIRTY DAYS

         Plaintiff Jeremiah D. Vickers (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 8, 40, 65); Local Rule 302. Currently before the Court is Plaintiff's motion for leave to file a second amended complaint, filed on November 30, 2016. (ECF No. 56.)[1]

         I. RELEVANT BACKGROUND

         This action proceeds on Plaintiff's first amended complaint, filed August 31, 2015, alleging excessive force against Defendants Smith and Sandoval, and deliberate indifference against Defendants Thompson, Smith and Sandoval, in violation of the Eighth Amendment. (ECF No. 18.) On March 30, 2016, following some delays by Plaintiff in submitting the necessary documents, the Court ordered the United States Marshal to serve a summons and first amended complaint on Defendants. (ECF No. 28.)

         On June 9, 2016, Defendants Smith and Thompson filed an answer to the first amended complaint. (ECF No. 35.) Following issues concerning service of process, on May 11, 2017, Defendant Sandoval filed an answer to the first amended complaint. (ECF No. 64.)[2]

         On June 10, 2016, the Court issued a discovery and scheduling order. (ECF No. 36.) Among other deadlines, that order set the deadline for amending pleadings as October 11, 2016, and the discovery cut-off deadline as November 10, 2016.

         On September 15, 2016, the United States Marshal returned the summons and complaint unexecuted as to Defendant Sandoval. (ECF No. 48.)

         On October 11, 2016, Plaintiff filed a motion to extend the deadline to file amended pleadings. (ECF No. 49.) The Court granted Plaintiff's request and extended that deadline to December 11, 2016. (ECF No. 50.)

         On November 30, 2016, Plaintiff filed the subject motion for leave to file a second amended complaint. (ECF No. 56.) Defendants filed an opposition to the motion on December 1, 2016. (ECF No. 58.) The time to file any reply has passed, and none was filed.

         Accordingly, the motion is submitted without oral argument. Local Rule 230(1).

         II. LEGAL STANDARD

         Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course twenty-one days after serving, or if a response was filed, within twenty-one days after service of the response. Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2).

         Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.'” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951.

         III. DISCUSSION

         A. Summary of First Amended Compliant

         At the time of the events at issue in this action, Plaintiff was a convicted inmate housed at the Tulare County Jail while awaiting transfer to a CDCR facility. Plaintiff was housed in a single status cell in administrative segregation. He is a documented Mental Health patient and was receiving several varieties and doses of psychotropic medication during the day. Plaintiff is African-American.

         On August 27, 2014, at night medication pill pass, Defendant Smith opened the food port on Plaintiff's cell door to allow the nurse to hand him medication. Plaintiff stuck his arm out of the food port in a “non-threatening manner, ” dangling at the elbow downward, and “refused to put it back in, hindering the deputy's ability to close it.” (ECF No. 18, at 3.) Defendant Smith told Plaintiff to take his arm out, and Plaintiff refused. Defendant Smith audibly exhaled and then grabbed Plaintiff's arm and hand with both of his hands and began “twisting, turning and pulling them violently in different directions in an attempt to dislocate and/or break them/it.” (ECF No. 18, at 8.) Plaintiff was able to non-aggressively turn with Defendant to prevent a break or dislocation. The event lasted for fourteen seconds. After about seven seconds, Plaintiff asked why he was trying to break his arm. Defendant Smith released Plaintiff's arm and shoved it back into the door saying, “motherfucker!” (ECF No. 18, at 8.)

         Defendant Smith then told the nurse to leave and radioed his sergeant and co-workers. When the other deputies arrived, Defendant Smith, with a smirk, said, “He won't stick his arm in. I tried to break that motherfucker.” (ECF No. 18, at 8.) Defendant Thompson arrived and instructed Plaintiff to take his arm out of the food port, or else he'd be tasered. At the suggestion of another officer, Plaintiff was simply handcuffed and placed in a downstairs holding cell. Plaintiff contends that he was never a physical threat because he was in his cell the entire time, and he never acted aggressively.

         Plaintiff was placed in a holding cell for about nine hours. Twice during this time, Defendant O'Neil came and stood over Plaintiff, sneering down at him with an intimidating look, but saying nothing. Plaintiff believes that he intended to intimidate Plaintiff.

         At 6:40 a.m., Plaintiff asked a passing deputy what time it was. Ten minutes later, Defendants Smith and O'Neil, along with Deputy Alverez, placed Plaintiff back into his cell. Once the handcuffs were taken off, Plaintiff refused to remove his arm out of the cell door's food port. Defendants Smith and O'Neil became hostile, saying “Pull your fucking arm in, dude, ” or “what the fuck is up with you?” (ECF No. 18, at 6.) Deputy Alvarez asked, “just tase him now?” (ECF No. 18 at, 6.) Defendant O'Neil then grabbed Plaintiff's arm and wrist and violently twisting and turning them, just as Defendant Smith had the night before. Deputy Alvarez and Defendant Smith just watched.

         Plaintiff turned with the assault and remained calm, and asked Defendant O'Neil, “What's wrong with you...why are you trying to break my arm? This is out of line.” (ECF No. 18, at 12.) Plaintiff's pleas only ignited Defendant O'Neil and he said several racial slurs, such as “You don't want to pull in your arm, you fucking monkey.” (ECF No. 18, at 12.) After ten or twelve seconds, Defendant O'Neil released Plaintiff's arm and added more curses and racial slurs.

         Deputy Alvarez again asked if he should tase Plaintiff. Deputy Alvarez grabbed his taser and Defendant O'Neil radioed and called all deputies to the fourth floor. Defendant O'Neil then grabbed Plaintiff's arm and began twisting it again. Defendant Smith said he was going to open the door and Defendant O'Neil nodded his head. Defendant Smith unlocked the door and began violently pulling at Plaintiff's shoulders and shirt and shoving Plaintiff in the neck, torso and mid-section. Both of Plaintiff's arms were in the food port, holding him in place.

         Plaintiff remained calm and asked Defendant Smith why he was doing this. Defendant Smith then lifted Plaintiff's feet 4.5 feet off the floor and pushed down on his shoulders. Plaintiff remained silent and kept his body still. Defendant Smith dropped one of his legs.

         When Defendant Thompson and other deputies approached, the attack intensified. One deputy grabbed Plaintiff's other leg off the ground and another began to yank Plaintiff's torso and mid-section, all while his arm and hand were being twisted and scraped on the other side of the door. To avoid a head injury, Plaintiff was able to place one arm on the ground. His other arm was released and pushed through the food port. Plaintiff's legs were thrown inside the cell, out of the doorway. While Plaintiff was completely still on the ground, some deputies gave him boot-kicks to the legs, side and back. Plaintiff attempted to curl-up and Defendant Sandoval pressed Plaintiff's head to the ground with one hand as his knee was on Plaintiff's upper rib section. He then delivered three or four closed-fist blows to Plaintiff's thigh and his arm, which was covering his face. Defendant Smith was kicking Plaintiff in the shin and knee.

         At some point, someone said, “all right, ” and Defendant Sandoval rose up and backed out of the cell. Plaintiff asked if they were just going to leave him on the floor, and then asked to see the nurse. Defendant Sandoval attempted to rush back in while Plaintiff was still on the ground. Instead, he rushed into the corner of the bed frame, and Plaintiff put up his arm to brace himself in case Sandoval fell. Plaintiff said, “Please be careful, don't hurt yourself trying to hurt me.” (ECF No. 18, at 14.) However, Defendant Sandoval looked down at Plaintiff and then punched him in the face, busting open his lip and hitting his head off the floor. Defendant Sandoval got up and kicked Plaintiff once or twice before he left. Plaintiff asked if he would receive medical attention, but he did not receive any.

         Approximately fifteen minutes later, Deputy Abbott began his shift and walked the tier. Plaintiff asked for medical attention, and asked that he be able to see the shift sergeant or lieutenant. Deputy Abbott asked Plaintiff what happened, and Plaintiff showed him his lip and told him that he had been beaten by the previous shift deputies. Deputy Abbott told Plaintiff that the nurse would be on the tier later, but he never informed the nurse of Plaintiff's situation.

         When the pill pass nurse arrived about two and one-half hours later, Plaintiff informed her of his condition. Plaintiff alleges that she was unaware, and was indifferent to the injuries he showed her. She instructed Plaintiff to fill out a sick-call request ship, which he did and turned in immediately. However, Plaintiff was never called on by medical staff.

         Shortly after, Plaintiff was moved to a different section of the jail and no one ...


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