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Dixon v. Oleachea

United States District Court, E.D. California

May 3, 2018

D. OLEACHEA, et al., Defendants.



         I. Background

         Plaintiff 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.

         II. Screening of First Amended Complaint (FAC)

         A. Legal Standards

         The 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).

         B. Plaintiff's Allegations

         The FAC 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 ...

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