Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Hernandez

United States District Court, E.D. California

November 9, 2017

DELBERT J. SMITH, Plaintiff,
v.
C. HERNANDEZ, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF NO. 32)

         Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Currently before the Court is Plaintiff's first amended complaint.

         I.

         PROCEDURAL HISTORY

         Plaintiff filed the complaint in this action on August 26, 2016. (ECF No. 1.) The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a), and found that it stated a cognizable claim for excessive force in violation of the Eighth Amendment against Defendants Hernandez, Cramer, and Zuniga. (ECF No. 6.) On October 13, 2016, an order issued requiring Plaintiff to either file an amended complaint or notify the Court that he wished to proceed only on those claims that were found to be cognizable. (Id.) On October 26, 2016, an order issued directing service on Defendants Hernandez, Cramer, and Zuniga and dismissing all other claims and defendants from this action. (ECF No. 8.)

         Defendants Hernandez, Cramer, and Zuniga were served with the complaint and filed an answer on January 31, 2017. (ECF Nos. 14, 16.) On February 1, 2017, the discovery and scheduling order issued setting the pretrial deadlines in this action. (ECF No. 17.) On February 13, 2017, Plaintiff filed a motion to amend his complaint and a first amended complaint was lodged. (ECF Nos. 18, 19.) On February 24, 2017, Defendants filed an opposition to the motion to amend the complaint. (ECF No. 22.) On July 18, 2017, Plaintiff's motion to file a first amended complaint was granted in part and denied in part and Plaintiff was ordered to file first amended complaint within thirty days. (ECF No. 30.) Plaintiff filed his first amended complaint on August 3, 2017. (ECF No. 32.) Defendants' filed a request to have the first amended complaint screened and an extension of time to respond which was granted on September 5, 2017. (ECF Nos. 33, 34.)

         II.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fail[] to state a claim on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         A 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         III.

         ALLEGATIONS IN FIRST AMENDED COMPLAINT

         Plaintiff is an African-American inmate in the custody of the California Department of Corrections and Rehabilitation. (First Am. Compl. (“FAC”) ¶ 1, ECF No. 32.) At the time of the incidents alleged in the complaint, Plaintiff was housed at the California Correctional Institute, Tehachapi (“CCI Tehachapi”). (FAC ¶ 2.)

         On March 1, 2016, Plaintiff was placed in an administrative segregation housing unit with a broken hand after a fight with a Sureno gang member. (FAC ¶ 2.) After hours of crying “Man Down” to get medical attention, Plaintiff was handcuffed by Officer C. Hernandez and a group of 5 to 6 Hispanic correctional officers took him to the sally-port where he was kicked and beaten while in handcuffs, thrown back into his cell, and told not to tell about the beating or he would be beaten again. (FAC ¶ 3.) Officer C. Hernandez, who was the primary officer who beat Plaintiff, called him a “black nigger” before putting Plaintiff back in handcuffs. (FAC ¶ 3.) There were four other officers who participated in beating and kicking Plaintiff while he was handcuffed and on the ground. (FAC ¶ 3.)

         Plaintiff remained in his cell for the next five hours, until 11:00 p.m. or thereafter crying out for help continuously from his cell. (FAC ¶ 4.) Plaintiff was again handcuffed, this time by Officer Flores-Alvarenga, Officer Zuniga, and other unidentified officers and taken across the yard. (FAC ¶ 4.) Without any provocation on Plaintiff's part, he was told to stop resisting and was placed in a chokehold, thrown on the ground, and beaten with steel batons by Officer Flores-Alvarenga, Officer Zuniga, and other unidentified officers. (FAC ¶ 4.) As a result of the beating, Plaintiff lost a tooth, received bloody flesh wounds on his head, face, scarring on his back and bicep, and suffers from post-traumatic stress disorder. (FAC ¶ 4.) Plaintiff was told by Officer Flores-Alvarenga and Officer Zuniga not to tell of the beating or he would be beaten to death. (FAC ¶ 4.) Plaintiff was taken to Medical where he was given Tylenol and placed back in his cell in excruciating pain. (FAC ¶ 4.)

         On March 2, 2016, Officer Cramer came to Plaintiff's cell and informed him that Plaintiff was to be taken to A-Yard Mental Health. (FAC ¶ 5.) During his eleven years of incarceration, Plaintiff asserts that he has never had any mental health issues. (FAC ¶ 5.) Plaintiff was immediately suspicious so he was reluctant to comply with being handcuffed. (FAC ¶ 5.) Eventually, Plaintiff complied by backing up to the tray slot backwards and placed both arms in the small tray slot for handcuffing as per policy. (FAC ¶ 5.) Officer Cramer responded by twisting Plaintiff's fractured, swollen, and painful right hand causing it to snap. (FAC ¶ 5.) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.