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Anderson v. Virga

United States District Court, E.D. California

July 27, 2017

TIM VIRGA, et al., Defendants.



         Plaintiff 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.

         Villasenor 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 be denied.

         I. Background

         A. Factual Allegations

         At all 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, 13.

         On 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 4.[1]

         Villasenor 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.

         Plaintiff “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.

         After 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.

         Plaintiff 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.

         Villasenor 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.

         Villasenor 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.

         Similarly, 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.

         B. Procedural Background

         Plaintiff 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.

         Villasenor 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.

         However, 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 ...

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