United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS AND TO
SEVER CERTAIN CLAIMS (ECF NO. 12)
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Lawrence Christopher Smith (“Plaintiff”) is a
state prisoner proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff initiated this
action on September 14, 2016. Plaintiff filed a consent to
Magistrate Judge jurisdiction on October 24, 2016. (ECF No.
4.) Plaintiff's first amended complaint, filed on July
14, 2017, is currently before the Court for screening. (ECF
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).
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 Service, 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.
Summary of Plaintiff's Allegations
is currently housed at Pelican Bay State Prison. The events
in the complaint are alleged to have occurred while Plaintiff
was housed at Kern Valley State Prison (“KVSP”),
Corcoran and at California Correctional Institution
(“CCI”) at Tehachapi. Plaintiff names over 42
individuals as defendants, as stated below, from various
incidents spanning many years.
alleges as follows.
Plaintiff alleges that on March 13, 2013, Defendant Sotelo,
P. Chanelo, D. Wattree, K. Hunt, L. Castro, A. Gonzalez, E.
Ramirez and R. Rodriguez, at KVSP, used force against
Plaintiff. The use of force was purported to have occurred
based on Plaintiff attempting to batter correctional
officers. Plaintiff was charged with battery on an officer
but the events occurred when these officers used force on the
Plaintiff and beat him while Plaintiff and on the ground
completely restrained. These officers deprived of KVSP
assaulted Plaintiff in retaliation. They also deprived
plaintiff of his orthotic shoes while subduing Plaintiff and
beat him again while in restraints a second time.
September 9, 2013, Defendant D. Knowlton, of CCI at
Tehachapi, used excessive force by emptying the entire
contents of canister of OC pepper spray into Plaintiff cell
as retaliation when there was no threat of harm and
correctional officials denied Plaintiff medical care.
November 15, 2013, Defendants E. Weiss, O. Hurtado and F.
Zavleta, of CCI at Tehachapi, extracted Plaintiff from his
cell and began striking Plaintiff with extendable batons,
their fists and kicked him while Plaintiff was handcuffed and
on the ground in a vulnerable position. They entered
Plaintiff's cell and punched, kicked and hit Plaintiff
with batons for several minutes leading to Plaintiff's
head and face becoming bruised and swollen. Correctional
Captain Haak had Plaintiff illegally enrolled in an
involuntary mental health program.
February 6, 2014, Defendants D. Gibbs and D. Hardy, of CCI at
Tehachapi, removed Plaintiff from his assigned cell for a
ruse of a cell search and Plaintiff was hit, kicked, and
punched with a baton while Plaintiff was on the ground. Once
restrained in handcuffs, Defendant Whitson ordered
Plaintiff's clothes be cut off him to degrade and
sexually harass Plaintiff under the guise of a medical
February 4, 2015, at CCI Tehachapi, Defendants A. Cantu, E.
Young, E Martinez and K. Campbell and several other officers
assaulted Plaintiff while he was in handcuffs and when he was
on the ground, severely injuring Plaintiff's face and
nose and beating Plaintiff with batons while he was on the
ground, and they then sprayed him with pepper spray.
Defendant Campbell saw the illegal use of force and did
nothing to intervene.
February 25, 2015, at CCI Tehachapi, A. Cantu, W. Gutierrez
and D. Matthingly and other officers used excessive force
while Plaintiff was handcuffed, shackled and with a spit
mask. They forced Plaintiff to the ground and repeatedly
punching, kicking and hitting Plaintiff with batons while
calling him racial names. Defendant BL Parrot and R. Cole
personally saw the battery on Plaintiff and may have joined
in the battery of Plaintiff.
April 16, 2015, Officer R. Jensen and G. Doser and a psych
tech J. Boger unlawfully and sexually harassed Plaintiff with
a strip search of Plaintiff was Plaintiff was attending the
facilities law library based upon an alleged weapon find of a
sharp instrument secreted in a hole in Plaintiff's cell
September 2, 2015, G. Wildey and A. Pearce, and other
officers, at CCI Tehachapi, used excessive force while
Plaintiff was in handcuffs hitting him with batons, kicking
and punching Plaintiff as he was down on the ground, and used
an entire canister of OC pepper spray and excessively pepper
spraying Plaintiff in the face, punching, and kicking him.
Defendant B. Mello conducted an illegal strip search in an
unauthorized use of force that was intended to be demanding
and sexually harassing alleging that B. Mello retrieved an
inmate manufactured weapon off the Plaintiff's person.
Plaintiff was further battered by defendant Flores and Riley
based upon the orders by B. Mello.
August 19, 2015, W. Guiterrez and O. Chavez, at CCI
Tehachapi, authored a false RVR for battery of a peace
officer and failed to offer Plaintiff due process by failing
to provide him with a fair and impartial investigative
of Access to Courts:
P. Grant, CCI Tehachapi, denied Plaintiff his legal documents
from August 19, 2013 to October 3, 2013 culminating in
Plaintiff being unable to file a writ of certiorari before
the Supreme Court to challenge timeliness procedural bars in
Habeas Corpus. Plaintiff had been granted a continuance to
file his claims before the U.S. Supreme Court until September
28, 2013, but based on Defendant Grant's denial of his
property, Plaintiff could not file his writ until October
2013. Plaintiff would only be able to file if he is now
granted a second or successive Habeas Corpus petition.
Plaintiff asks that Defendant bear the costs of filing fees
and transcription of his criminal trial proceedings.
alleges his legal property was taken and frustrated his
litigation efforts in case 1:10-CV-01814 in retaliation for
Plaintiff's protected speech and conduct within the
Courts. Defendant Uribe and Cable destroyed Plaintiff's
property by falsely stating Plaintiff refused his property.
Neither officer followed correct procedures.
Liability against K. Holland, Warden Matzen:
alleges the wardens are liable under the theory of respondeat
superior for the conspiracy in violating Plaintiff First
Amendment, Eighth Amendment and Due Process rights based on
Plaintiff's original suit (1:10-CV-1814) concerning
actions of Defendant Goss' action with RVR hearings
concerning an attempted murder of an inmate. Plaintiff was
retaliated against and his due process rights violated by
false RVRs for assaulting or battering officers, indifference
to his medical needs, confiscation of orthopedic devices,
denial of access to the courts, and several acts of
retaliation.. These officials implemented policies that were
a repudiation of Plaintiff's Constitutional rights.
Defendant Goss, along with K. Holland and Matzen,
systematically retaliated against Plaintiff by leveling false
RVRs against Plaintiff for “assaulting” or
“battering” officers and frustrate
Plaintiff's litigation efforts by authorizing deprivation
of Plaintiff's property.
requested declaratory judgment, punitive damages and