United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in an action brought under 42 U.S.C. § 1983. He asserts
Eighth Amendment claims for excessive force and deliberate
indifference to safety in his second amended complaint. The
gist of the second amended complaint is that defendants
unlawfully assigned him to a prison yard with known gang
members, two of whom brutally assaulted him. He also alleges
that defendant Villasenor unlawfully shot him with a
less-lethal block gun in quelling the disturbance.
moves to dismiss plaintiff's excessive force claim on the
ground that (1) it is not cognizable and that (2) qualified
immunity shields him from it. Careful review of the pleadings
shows that plaintiff has stated a cognizable excessive force
claim. Furthermore, taking the facts in light most favorable
to plaintiff, Villasenor does not enjoy qualified immunity.
Accordingly, as discussed below, the motion to dismiss should
relevant times, plaintiff was a state inmate at California
State Prison, Sacramento (“SAC”). Villasenor
worked at SAC as a correctional officer. ECF No. 46 at 3-4,
November 11, 2013, plaintiff was on the B-3 Special Housing
Unit exercise yard (“the yard”). Id. at
4, 13. The yard was “integrated, ” meaning up to
eight members of one or more gangs were on it. See
Id. at 3; see also ECF No. 53 at
was in the gun tower working as the primary security watch.
ECF No. 46 at 13. At some point, Villasenor stuck his head
out of the window and said: “You're still on
freeze, huh? That sucks don't it?” Id.
According to plaintiff, being on freeze “is when [an]
inmate is put in a corner by two other inmates of the same
gang and not allowed to move around the yard.”
Id. It is, he continues, “a type of discipline
for a gang member in trouble.” Id. Further,
plaintiff alleges that Villasenor called him a “p[ie]ce
of shit” after asking him if he was on freeze.
Id. Thereafter, plaintiff “was escorted by 2
inmates to the corner of the yard.” Id.
“was made to stand there by 2 inmates for about a half
of [an] hour.” Id. At some point, he
“was forced to work out for disciplinary reasons per
the inmates.” Id. During this time, Villasenor
watched him and smirked and laughed. Id.
working out for over an hour nonstop, two inmates jumped on
his back as he did push-ups and stabbed him fifteen times.
See Id. at 13-14. While he was on the ground being
stabbed, he saw Villasenor “at the tower window
laughing.” Id. at 13.
broke free and got to his feet. Id. He ran about ten
feet to escape his attackers and stopped. Id. He was
bleeding profusely and looking at his wounds, whereupon he
made eye contact with Villasenor and saw him aim his 40 mm
block gun directly at his head and shoot him with a sponge
round. See Id. at 13, 15-17, 54. He went on his
tiptoes and curled in to take the round in his upper shoulder
instead of his head. Id. at 13-14.
did not order him to get down before he shot him. ECF No. 53
at 4. Furthermore, plaintiff did not ball his fists, throw a
punch, pose a threat, or otherwise act aggressively. ECF No.
46 at 15. Additionally, the disturbance had already ended
when Villasenor shot him. Id. at 16. He adds that a
40 mm block gun “is the second most lethal weapon in
[the] arsenal” of a correctional officer at CSP. ECF
No. 53 at 3.
had an improper motive to shoot plaintiff. ECF No. 46 at
17-18. Villasenor's brother also worked at CSP as a
correctional officer. Id. at 17. Plaintiff once
reported him for stealing his phone book during a cell
search. Id. Thereafter, Villasenor's brother was
removed from his “gang cop job” and assigned to
transportation duty. Id. At some point, Villasenor
asked plaintiff why he snitched on his brother. Id.
According to plaintiff, these allegations show that
Villasenor shot him to retaliate against him for filing a
report against him brother. Id. at 18.
plaintiff alleges that Villasenor and other CSP personnel had
it out for him because they “thought he was a shot
caller and . . . was smuggling contraband into prison with
other [correctional] officers.” Id. at 22.
Therefore, they conspired to let the two inmates assault him
in the hope that they would kill him. See Id. 21-22.
When he did not die, Villasenor “shot [him] for good
measure.” Id. at 22.
filed a complaint under § 1983, ECF No. 1, which he
amended on March 16, 2016, ECF No. 23. In a screening order,
it was determined that he stated a “potentially
cognizable” Eighth Amendment excessive force claim
against Villasenor. ECF No. 26 at 1.
moved to dismiss, generally arguing that plaintiff failed to
state a claim for excessive force because he used minimal
force in a good-faith effort to restore discipline. ECF No.
35 at 5. The motion to dismiss was granted. ECF Nos. 43, 52.
The court held that plaintiff failed to state a facially
plausible claim that Villasenor's decision to shoot him
was malicious as opposed to a good-faith effort to restore
order. ECF No. 43 at 5-8.
the court dismissed the amended complaint without prejudice.
Id. at 8. The court noted that “some of the
assertions in [his] opposition contradict[ed] allegations in
his amended complaint.” Id. Therefore, the
court allowed him to file a second amended complaint