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Thornton v. Grissom

United States District Court, E.D. California

November 6, 2017

SIMON THORNTON, Plaintiff,
v.
D. GRISSOM, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME; FINDINGS AND RECOMMENDATIONS TO DENY WITHOUT PREJUDICE DEFENDANTS' MOTION TO DISMISS (ECF Nos. 50, 52) FOURTEEN-DAY DEADLINE

          Michael J. Seng, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff is proceeding on his First Amended Complaint on an Eighth Amendment excessive force claim against Defendant Correctional Officer (“CO”) Grissom and an Eighth Amendment failure to protect claim against Defendant CO Cruz.

         Pending now is Defendants' motion to dismiss, which Plaintiff opposes. For the reasons set forth here, the undersigned will recommend that this motion be denied.

         I. The First Amended Complaint

         A. Plaintiff's Allegations

         The acts giving rise to this action occurred while Plaintiff was housed at Kern Valley State Prison (“KVSP”) in Delano, California. Plaintiff alleges that on August 28, 2015, Defendants CO Grissom and Cruz came to Plaintiff's cell, placed him in handcuffs, and directed him to step outside of the cell. Once Plaintiff exited the cell, CO Grissom placed a hand on Plaintiff's left elbow and made “an assaultive gesture.” CO Grissom said that he could just throw Plaintiff off the tier to kill him and then report that Plaintiff jumped off. This interaction scared Plaintiff. He tried to pull his arm free from CO Grissom but accidentally bumped into him. CO Grissom pushed Plaintiff forcefully toward his cell and onto the floor. CO Grissom then punched Plaintiff six times in the middle of his back along the spine. On the third strike, Plaintiff felt a popping, breaking and tearing sensation. Plaintiff, who feared for his life, began to kick out his legs in self-defense. CO Grissom then punched Plaintiff in the stomach area an additional five or six times. At this point, CO Cruz, who was standing outside acting as the lookout for CO Grissom, gave CO Grissom a verbal warning that other staff were approaching.

         B. Plaintiff's Exhaustion Efforts

         Plaintiff filed an inmate grievance following the August 28, 2015, incident. See First Am. Compl. at 7 ¶ 12. In the First Amended Complaint, Plaintiff addresses his attempts to exhaust his administrative remedies:

12. Plaintiff filed an administrative 602 form in which plaintiff spoke upon the police brutality and defendant Tallerica delayed a response for 7 months with the aid of defendant Custer thereby denying me access to the courts and due process.
13. Plaintiff alleges a good faith effort has been made and continues to be made to exhaust the administrative remedy. Attached are several documents showing the plaintiff's on-going attempts to deal with the administrative remedies.

First Am. Compl. at 7 ¶¶ 12-13.

         Plaintiff then references several documents that are attached to the original complaint, including (a) an October 5, 2015, notice to Plaintiff that his grievance was assigned to the second level of review for a response; (b) four notices from a KVSP Appeals Coordinator pursuant to Cal. Code Regs. tit. 15, § 3084.8(d) informing Plaintiff of “Exceptional Delay in Review of Appeal” at the second level of review, each citing the reason for the delay as “Unavailability of the appellant, or staff or inmate witness”; (c) a number of CDCR 22 Forms filed by Plaintiff requesting the status of his grievance; and (d) a March 21, 2016 letter Plaintiff wrote to the “Chief of Appeals” seeking assistance in getting his appeal processed. See Compl. Attach. (ECF No. 1 at 20-33).

         The KVSP delay notices are dated:

(1) October 15, 2015, with an estimated completion date of ...

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