United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMNENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner incarcerated at California State Prison
Corcoran, under the authority of the California Department of
Corrections and Rehabilitation (CDCR), proceeding pro se with
a First Amended Complaint (FAC) filed pursuant to 42 U.S.C.
§ 1983. Plaintiff paid the filing fee. By order filed
June 29, 2016, this court screened plaintiff's original
complaint pursuant to 28 U.S.C. § 1915A, and gave
plaintiff the choice of proceeding on his original complaint
against defendants Oleachea, Sandoval and Hall (but not
defendants Lieber or Virga), or filing a FAC in an attempt to
add an additional claim against defendant Oleachea.
See ECF No. 8. Plaintiff chose the latter option.
The court now screens the FAC pursuant to 28 U.S.C. §
1915A. For the reasons set forth below, the court orders
service of the FAC on defendants Oleachea, Sandoval and Hall,
and recommends the dismissal of defendants Lieber and Hall.
Screening of First Amended Complaint (FAC)
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 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, ” fail to state
a claim upon which relief may be granted, or seek monetary
relief from a defendant who is immune from such relief.
Id., § 1915A(b)(1), (2).
repeats the essential allegations of the original complaint,
challenging conditions of plaintiff's prior confinement
at California State Prison Sacramento (CSP-SAC), and adding
allegations specific to plaintiff's retaliation claim
against defendant Oleachea. In light of these similarities,
the court repeats its prior summary of plaintiff's
principal allegations, see ECF No. 8 at 3-5:
Plaintiff's allegations focus on the challenged conduct
of defendant D. Oleachea, a CSP-SAC correctional officer
(CO). On February 6, 2011, plaintiff was visiting with his
wife in the prison visiting area. After about 45 minutes,
plaintiff was called to the podium and directed to the strip
out area, where he was searched. The search was triggered by
a report from defendant Oleachea, who was operating the
surveillance camera that scanned the visiting room, that
plaintiff appeared to take and/or hold a $20 bill in his
hand. The search of plaintiff failed to reveal any money or
other contraband. Nevertheless, plaintiff's visit was
terminated and he was issued a Rules Violation Report (RVR)
(Log No. B-11-02-013), alleging “Possession of
Contraband (Money).” See ECF No. 1 at 16.1
Plaintiff wrote a letter of complaint to defendant D. Lieber
(“the Chief Disciplinary Officer and Associate Warden
in charge of reviewing all administrative appeals, ”
see Complaint (Cmplt.), ECF No. 1 at 2, ¶ 4), who
allegedly never responded. Plaintiff was found “Not
Guilty” at the subsequent disciplinary hearing held
March 7, 2011
Thereafter, on November 6, 2011, plaintiff was again visiting
with his wife in the prison visiting area. While plaintiff
was having his picture taken, defendant Oleachea called
plaintiff and his wife aside and told them that the visit was
being terminated because plaintiff's wife was dressed
inappropriately. Plaintiff asked if his wife could put on her
sweater, but Oleachea said no. Plaintiff told Oleachea that
he would not leave the visiting area without speaking with
the sergeant, Oleachea's supervisor. Plaintiff walked
back to his assigned visiting table and sat down. Oleachea
instructed plaintiff's wife to stand by the stairs and
then walked over to plaintiff. Oleachea pulled out his pepper
spray and instructed the other visitors to move.
Defendant R. Sandoval, another CO, came to plaintiff's
table and stood next to Oleachea. Sandoval reportedly told
Oleachea “four times to put that away (his pepper
spray) and . . . that we don't need that out here.”
Cmplt., ECF No. 1 at 7, ¶ 30. As plaintiff attempted to
explain to Sandoval why he wanted to speak with the sergeant,
defendant Oleachea “out of nowhere and unprovoked,
sprays plaintiff directly in the face while plaintiff sat in
his seat.” Id. at ¶ 32. Plaintiff avers
that he then “calmly gets up and walks in the opposite
direction of defendant Oleachea, ” but Oleachea
“sprays a second burst of pepper spray into the back of
plaintiff's head.” Id. at ¶¶
33-4. Plaintiff then “changes directions, walking
towards the right to get away, ” but Oleachea
“sprays plaintiff a third time to the right side of
plaintiff's face and yells get down!” Id.
at ¶¶ 35-6. “As plaintiff was getting down,
defendant Oleachea sprays plaintiff a fourth time.”
Id. at ¶ 37. Plaintiff was then cuffed, taken
to a holding cage, decontaminated and examined, then returned
to his cell.
Plaintiff's wife, then age 64, was “cordoned off in
the visiting room control booth suffering the effects of the
pepper spray while the other civilian visitors were sent
outside on the patio to get fresh air.” Id. at
¶ 40. Plaintiff's wife complained to CO Mirlohi that
she had asthma and was having trouble breathing. Mirlohi
initially failed to respond, but then called for CO Hammon to
escort her to a bunker.
Plaintiff was issued an RVR (Log No. B-11-11-020) for
“Refusing a Direct Order.” See ECF No. 1 at 39.
Plaintiff was found guilty. Id. at 43. However, the
hearing officer found that the incident had not warranted
issuance of an RVR, and reduced the matter to an
administrative CDC-128A Custodial Counseling Chrono.
Plaintiff was counseled and reprimanded.
Plaintiff avers that he filed and exhausted a prison
administrative grievance challenging the conduct of defendant
Oleachea on November 6, 2011. Id. at ¶ 52;
see also ECF No. 1 at 2. Plaintiff's exhibits
include the statements of visitors to the prison that day who
reported to officials that Oleachea's response was
unprovoked by plaintiff. See e.g. id. at 28.
Plaintiff was interviewed in March 2013 by a member of
CDCR's Legal Affairs Office concerning the November
incident. Plaintiff was thereafter served with a subpoena to
be a witness before the State Personnel Board in proceedings
against Oleachea, but “on the account of defendant
Oleachea accepting something with lesser consequences,
plaintiff did not have to appear at the hearing.”
Id. at ¶ 51.
Plaintiff alleges that he has been diagnosed him with chronic
dry eye syndrome due to the pepper spray incident. Plaintiff
suffers from blurred vision, sensitivity to light, and
persistent eye irritation and pain, which require the use of
artificial tears. Plaintiff alleges that he suffers
nightmares about being pepper sprayed, which cause him to
have difficulty breathing. Plaintiff states that he has been
a mental health patient ...