United States District Court, E.D. California
LARRY D. THOMAS, Plaintiff,
V. YATES, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION AS TIME-BARRED
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.
Larry D. Thomas, a state prisoner proceeding pro se in this
civil rights action pursuant to 42 U.S.C. § 1983, and
federal and state law claims arising out of events in 2009
that occurred at Kern Valley State Prison. On September 21,
2016, the Court screened Plaintiff's complaint and
concluded that his claims were likely time-barred. Plaintiff
was granted leave to amend. (ECF No. 5.) Plaintiff filed his
first amended complaint on October 17, 2016, which is
currently before the Court for screening. (ECF No. 6.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged, Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
The sheer possibility that a defendant acted unlawfully is
not sufficient, and mere consistency with liability falls
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation
marks omitted); Moss, 572 F.3d at 969.
Allegations in First Amended Complaint
is currently incarcerated at the R.J. Donovan Correctional
Facility in San Diego, California. Plaintiff's claims
stem from a use of force incident that occurred on July 20,
2009, while Plaintiff was housed at Kern Valley State Prison.
alleges that he was awakened on July 20, 2009, by Defendants
Cervantes and Villa to be transported to the Tehachapi
Surgery Center. After Plaintiff was strip searched, Defendant
Cervantes placed handcuffs on him so tightly as to cause pain
and restrict Plaintiff's blood flow. Plaintiff
immediately requested that Defendant Cervantes loosen the
handcuffs. In response, Defendant Cervantes loosened the
cuffs. However, after loosening the handcuffs, Defendant
Cervantes then clicked the handcuffs to an even tighter hold
on Plaintiff's wrists. Plaintiff believes that Defendant
Cervantes was taking cues from Defendant Villa to put the
handcuffs on extremely tight. Plaintiff again complained that
the handcuffs were too tight, causing severe pain, and
requested that they be loosened. Defendants Cervantes refused
V. Yates intervened, checking the handcuffs and informing
Plaintiff that they were fine. Plaintiff alleges that because
of the refusal to loosen his handcuffs, Plaintiff had no
alternative but to refuse medical transportation. Plaintiff
told Defendant Yates, “If you're not going to
loosen the handcuffs, then I'm refusing medical treatment
and … I no longer want[ ] to go.” (ECF No. 6 at
p. 14.) Plaintiff then requested that the handcuffs be
removed while his hands were still outside of the food port
and the waist chain dangled to the floor. Plaintiff alleges
that instead of removing the handcuffs, Defendant Yates
grasped the waist chain and began to pull on it. As a result,
Plaintiff's forearms were pulled through the food port
slot, leaving scrape marks on his forearms and causing pain
to his wrists. Plaintiff further alleges that Defendant
Cervantes and Defendant Villa also began to pull on the waist
chain, and that Defendant Villa also put his right foot
against the cell door/wall while pulling to cause Plaintiff
greater pain. Plaintiff then asked Defendant Villa if he was
enjoying, and his response was “Fuck yeah.”
(Id. at p. 15.) Officer Reyes eventually intervened
to uncuff Plaintiff.
asserts in an elaborate ruse, Defendant Yates asserted that
Plaintiff pulled the waist chain through the food port slot
and, in the process, Defendant Yates' left index finger
was caught in the chain. Plaintiff contends, however, that it
is virtually impossible for any person to have a finger
caught in the waist chain. Plaintiff alleges that Defendant
Yates lied and instead grasped the waist chain, coiled it
around his hand, yanked it and then began pulling, inflicting
excessive force on Plaintiff. Plaintiff asserts that
Defendants Yates, Cervantes and Villa pulled the waist chain
in tandem so that the attached handcuffs cut into
Plaintiff's wrists, broke Plaintiff's skin,
restricted blood flow and caused excruciating pain.
further alleges that he was denied medical treatment for his
injuries. Specifically, Plaintiff asserts that Defendant
Yates ordered Officer Reyes to have medical staff complete a
refusal of medical treatments services form. Defendant
Mongohig, the on duty LVN, came to Plaintiff's cell to
have him sign the refusal of medical treatment services from.
However, Plaintiff refused to sign the form because the
decision not to be transported to the Tehachapi Surgery
Center was forced upon as a result of the abusive manner in
which the handcuffs were placed on him. Plaintiff asserts
that Defendant Mongohig failed to diagnose Plaintiff's
injuries and failed to complete the necessary report of
injury/unusual occurrence. Further, despite Plaintiff's
complaints of severe pain, broken skin and visible welts,
Defendant Mongohig allegedly denied Plaintiff medical
treatment services, resulting in lingering pain and
later, after shift change, Plaintiff was afforded the
opportunity to voice his allegations of excessive force and
employee misconduct to Correctional Sergeant Day.
Correctional Lieutenant Blackstone was contacted and a
videotaped interview was conducted. Following the interview,
Defendant Gonzales, an LVN, was contacted to complete a
report of injury/unusual occurrence form to document
Plaintiff's injuries. Defendant Gonzales visually
examined Plaintiff's injuries, but her sole purpose was
to complete the form. Plaintiff ...