United States District Court, E.D. California
DELBERT J. SMITH, Plaintiff,
C. HERNANDEZ, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
CERTAIN CLAIMS AND DEFENDANTS (ECF NO. 32)
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
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.)
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.)
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).
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
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.
IN FIRST AMENDED COMPLAINT
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
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
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.)
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.) ...