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Jackson v. Romero

United States District Court, S.D. California

July 17, 2019

DUWAYNE JACKSON, CDCR #J-41016 Plaintiff,



         Plaintiff Duwayne Jackson is a state prisoner currently housed at the California State Prison, Sacramento, proceeding pro se and in forma pauperis with a Second Amended Complaint (“SAC”) pursuant to 42 U.S.C. § 1983. (ECF No. 37.) Plaintiff claims that while incarcerated at the R.J. Donovan Correctional Facility (“RJDCF”) in San Diego, California, the Defendants were deliberately indifferent to his serious medical needs, used excessive force amounting to cruel and unusual punishment, and retaliated against him for filing inmate grievances, in violation of the First, Eighth and Fourteenth Amendments. (Id. at 4-20.) He alleges that: (1) during a cell search Defendant Navarro damaged his property, threatened him, and handcuffed him in violation of a medical order requiring waist restraints; (2) one week later Defendant Navarro, in retaliation for having filed an inmate grievance about the first incident, slammed him to the floor while escorting him after handcuffing him in violation of his medical order; and (3) four months later, in retaliation for having filed an inmate grievance about Defendant Navarro's actions, he was sprayed in the face with Oleoresin Capsicum (“OC”) spray by Defendant Romero without provocation, and then punched and kicked while on the ground by Defendants Romero and Valdovinos while passively complying with orders to submit to handcuffing. (Id.)

         Currently pending is a Motion for Summary Judgment by Defendant Navarro (ECF No. 111), and a Motion for Summary Judgment by Defendants Romero and Valdovinos (ECF No. 116). Plaintiff has filed a joint Opposition to both Motions. (ECF No. 126.) Defendant Navarro has filed a Reply. (ECF No. 131.)

         For the following reasons, the Court: (1) GRANTS Defendant Navarro's Motion for Summary Judgment on all claims, and (2) GRANTS in part the Motion for Summary Judgment filed by Defendants Romero and Valdovinos as to Plaintiff's medical care claims, and DENIES it in part as to Plaintiff's retaliation and excessive force claims.[1]

         I. Procedural Background

         Plaintiff initiated this action by filing a Complaint on May 2, 2017, naming four Defendants, Paramo, Navarro, Romero and Valdovinos. (ECF No. 1.) He filed the SAC, the operative pleading in this action, on February 26, 2018, naming those same Defendants plus four new Defendants. (ECF No. 37.) On November 9, 2018, the Court dismissed Plaintiff's claims against the four new Defendants and against Defendant Paramo, leaving only Navarro, Romero and Valdovinos as Defendants. (ECF No. 84.)

         Defendants Romero and Valdovinos, represented by the California Attorney General, filed the instant Motion for Summary Judgment on April 5, 2019. (ECF No. 116.) Defendant Navarro, represented by private counsel, filed the instant Motion for Summary Judgment on April 5, 2019. (ECF No. 111.) Plaintiff filed a joint Opposition to both motions on May 10, 2019. (ECF No. 126.) Defendant Navarro filed a Reply to Plaintiff's Opposition on June 5, 2019. (ECF No. 131.)

         II. Plaintiff's Allegations

         Plaintiff alleges in the SAC that at all relevant times he was housed in the Enhanced Outpatient Program for mentally ill prisoners at RJDCF. (ECF No. 37 at 4.) On July 26, 2016, after several complaints to correctional employees that he was receiving only one hot meal per day in violation of prison regulations requiring inmates receive at least two hot meals per day, he covered his cell window in an “attempt to get the attention of the mental health sergeant in charge of the Enhanced Outpatient Program (EOP) at RJDCF.” (Id.) Instead, Defendant Navarro opened his cell door “without any warning” in violation of prison regulations, pointed his M-K9 OC spray device at Plaintiff and ordered him to submit to handcuffs. (Id.) Plaintiff alleges he “explained to Defendant Navarro that he has an ongoing medical condition requiring plaintiff to be waist restrained as opposed to handcuff[ed], ” to which Defendant Navarro allegedly replied that if Plaintiff did not submit to handcuffs “he would spray my black expletive.” (Id.)

         Plaintiff was handcuffed with his hands behind his back and taken to a shower where he was searched by Defendant Navarro while another officer, soon joined by Defendant Navarro, searched his cell. (Id.) Defendant Navarro allegedly told Plaintiff at that time that the correctional officers at RJDCF “were ‘dirty cops' and the officers make things up to get prisoners off the yard and place false charges on them for placement in administrative segregation.” (Id. at 5.) When Plaintiff returned to his cell he found it in disarray with missing property and damage to his television. (Id.) He filed a California Department of Corrections and Rehabilitation (“CDCR”) 602 inmate grievance about the incident on July 27, 2016, which was denied at all levels. (Id. at 26-34.)

         One week later, on August 2, 2016, while returning from evening meal service where he once again received a cold meal, Plaintiff threw his meal on the floor and threw a trash can over the railing of his cell block. (Id. at 5.) Defendant Navarro ordered him to pick up the trash, and when he refused, Defendant Navarro activated his personal alarm, ordered Plaintiff to assume a prone position with his hands behind his back, and he complied. (Id.) Plaintiff alleges he informed Defendant Navarro “again” that he had a doctor's order for waist restraints, and “by placing Plaintiff into handcuffs hurt Plaintiff's fractured scaphoid non union hand” injury. (Id. at 5-6.) As Defendant Navarro escorted Plaintiff off the yard, Plaintiff turned his head toward Defendant Navarro and said “you ain't got nothing on me, ” and Defendant Navarro reacted by abruptly attempting to slam Plaintiff down on his face. (Id. at 6.) Plaintiff avoided being taken down by “defending and deflecting his body weight in such a way to break the take down, ” which caused Defendant Navarro to fall and be laughed at by other inmates. (Id.) Defendant Navarro got to his feet, placed Plaintiff in a choke hold, took him to the ground, and began driving his knee into Plaintiff's back. (Id.) Plaintiff “began to squirm and wiggle and yell get off my back you're hurting me [and] shook the Defendant off, ” and was escorted by another officer to a holding cell where he “began to have mental health symptoms and become suicidal.” (Id. at 7.) He was placed in the Mental Health Alternate housing section of the Administrative Segregation Unit, and alleges he was falsely charged with assault on a peace officer by means likely to cause great bodily injury. (Id.) He was transferred to another facility, and when he returned to RJDCF on January 13, 2017, he was once again housed on Facility C where the incidents with Defendant Navarro occurred, despite informing prison officials he did not feel safe returning to Facility C. (Id. at 13, 15.)

         Plaintiff alleges that on January 16, 2017, he was brutally beaten by Defendants Romero and Valdovinos in retaliation for “exercising his constitutional rights against Defendant Navarro.” (Id. at 13.) He states that he was released from his cell on Facility C for his breakfast meal about 7:30 a.m., and when he attempted to retrieve a kosher meal he was told by correctional officer Hodges he could not have one because his name was not on the list and he had to fill out an application. (Id. at 15.) Plaintiff showed officer Hodges his “religious card” and said that if that did not suffice he would get his medication and return to his housing unit. (Id.) Defendant Romero then told Plaintiff to get a general population food tray. (Id.) Plaintiff told Defendant Romero that his religious dietary laws prohibited him from eating a tray, and “began walking away without any provocation” to the other side of the yard to get his medication. (Id.) As he was walking away: “Defendant Valdovinos said aloud ‘get the fuck out of here.'” (Id.) Plaintiff states that he was shocked and turned around and said “what?” (Id.) Defendant Romero walked toward Plaintiff shaking his OC spray and sprayed him directly in the face without any provocation. (Id.) Plaintiff alleges he “immediately fell to the ground and it felt like Defendant Romero and Defendant Valdovinos and officer Hodges all three began to beat me by punching, kicking and beating me while Plaintiff was on the ground defenseless.” (Id. at 15-16.) He alleges his left pinky finger was broken when Defendant Romero pulled his hands behind his back, he was poked in the right eye with a baton resulting in a broken blood vessel, and he sprained his right ankle. (Id. at 16.) As Defendant Romero handcuffed him, both braces he wore on his wrists were torn off, revealing his previously injured scaphoid non-union fracture which was the basis for his medical order for waist restraints. (Id.)

         Plaintiff was taken to a holding cell with his jean jacket pulled down over his handcuffs. (Id.) He alleges his repeated requests to be decontaminated from the OC spray were denied, he was denied the use of the restroom or drinking water for three hours, was refused medical treatment, including the use of his asthma inhaler, and eventually urinated on his jacket and used it to wash the OC spray from his eyes. (Id. at 16-18.) He alleges Defendant Valdovinos told him “that was for what happened to Defendant Navarro, ” and that Defendant Romero told him he was not supposed to return to Facility C due to the incident with Defendant Navarro, and that this incident should keep him off Facility C and he better not return. (Id. at 17-18.) He was then brought to the administrative segregation unit and allowed to shower, but alleges he was not provided medical attention for several months and has yet to have his finger injury properly assessed. (Id. at 18-19.)

         Plaintiff alleges he suffered damage to his left pinky finger, right ankle, lower back, right eye, and pain from his left scaphoid fracture, as well as “shame, humiliation, degradation, emotional distress, mental distress and other injuries.” (Id. at 14.) He seeks a declaratory judgment that his federal constitutional rights were violated, an injunction directing prison officials to provide medical treatment for his injuries, as well as monetary damages and a jury trial. (Id. at 22-23.)

         III. Discussion

         Defendant Navarro moves for summary judgment on the basis that: (1) Plaintiff's allegations regarding minor or non-existent injuries from a de minimis use of force does not rise to the level of an Eighth Amendment violation, (2) mere threats do not rise to the level of an Eighth Amendment violation as a matter of law, (3) any claims arising from property damage are barred because Plaintiff has no protected right to possess property in prison, has an adequate post-deprivation remedy under state law, and has provided no evidence Defendant Navarro damaged his property, (4) there is no evidence Defendant Navarro's actions were in retaliation for Plaintiff filing an inmate grievance because there is no evidence he knew of any grievance, and (5) there is no evidence Defendant Navarro was involved in the January 16 incident. (ECF No. 111-1 at 16-25.)

         Defendants Romero and Valdovinos move for summary judgment on the basis that: (1) they did not use excessive force in restraining Plaintiff, but used reasonable force necessary to restore prison safety and security, (2) they were not deliberately indifferent to Plaintiff's medical needs because he was immediately examined by medical personnel and refused decontamination from the OC spray, (3) there is no evidence they retaliated against him because they were unaware he filed an inmate grievance against Defendant Navarro, and because their actions were a justifiable and reasonable response to a threat to prison security, (4) Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997), because success on his claims would necessarily invalidate his prison disciplinary finding that he precipitated their encounter by punching Defendant Romero, and (5) they are entitled to qualified immunity because they did not violate Plaintiff's rights, and even if they did it would not have been clear to a reasonable officer that their actions violated his rights. (ECF No. 116-1 at 14-27.)

         A. Legal Standards

         Defendants are entitled to summary judgment if they show “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing summary judgment is proper “by showing the absence of a genuine issue as to any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         In order to avoid summary judgment, the nonmovant must present “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Court may not weigh evidence or make credibility determinations, and any inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Id. at 255. The nonmovant's evidence need only be such that a “jury might return a verdict in his favor.” Id. at 257.

         B. Arguments and evidence in support and opposition to summary judgment

         1. Defendant Navarro's Motion for Summary Judgment

         Defendant Navarro presents his own declaration stating that he was working as a correctional officer at RJDCF on July 26, 2016, and searched Plaintiff's cell that day, during which he removed soda cans which inmates are not permitted to keep in their cells. (ECF No. 111-5 at 2.) Plaintiff became belligerent as Defendant Navarro issued him a cell search receipt, so he ordered Plaintiff to lock up in his cell. (Id.) Plaintiff ignored the order and began uttering profanities toward Defendant Navarro, refused a second order to lock up and continued to utter profanities, and only upon a third order did he return to his cell. (Id.) Defendant Navarro states that he did not handcuff Plaintiff and did not damage his television or remove deodorant from his cell, but does not speak to any events prior to the cell search. (Id.) The next day, Sergeant Hampton filed a Rules Violation Report (“RVR”) at Defendant Navarro's request charging Plaintiff with behavior which could lead to violence. (Id.) Defendant Navarro states that the RVR was based on the need to insure Plaintiff complies with CDCR rules which serve to protect him, correctional staff, and the security of the institution, and was filed without animus. (Id.) He did not become aware Plaintiff had filed an inmate grievance against him in connection to the July 26 incident until several weeks later, which was when he first learned Plaintiff complained he had been handcuffed behind his back despite a medical chrono authorizing waist chains. (Id.)

         Defendant Navarro states that on August 2, 2016, he was performing a search of the common areas and monitoring the return of inmates from the evening meal when he observed Plaintiff walk up the steps to the second tier toward his cell. (Id. at 3.) When Plaintiff reached the second tier, he picked up a 35-gallon trash can and threw it onto the lower tier. (Id.) It landed about seven feet from Defendant Navarro and correctional officer Martin. (Id.) Defendant Navarro states that Plaintiff became an immediate security threat by throwing the trash can and therefore needed to be taken into custody and removed from the housing unit. (Id.) He ordered Plaintiff to get down and submit to handcuffs, and activated his personal alarm when Plaintiff did not comply. (Id.) Defendant Navarro and correctional officer Martin approached Plaintiff, who only then complied with the order to get down. (Id.)

         Defendant Navarro states that he handcuffed Plaintiff and conducted a clothed body search for weapons and contraband and found none. (Id.) As he was escorting Plaintiff to the lower B shower area, Plaintiff suddenly lunged head first toward Defendant Navarro's face almost striking him in the head. (Id.) Plaintiff tried to break free from Defendant Navarro's grasp by aggressively twisting his upper body from side to side while Defendant Navarro yelled commands for him to stop and get down. (Id.) He grabbed Plaintiff by his shirt near his upper left arm and shoulder and forced him to the ground into a prone position. (Id.) Once Plaintiff was on the ground, other officers took custody of him and escorted him away. (Id.) Defendant Navarro filed an RVR on August 3, 2016, charging Plaintiff with assault on a peace officer likely to cause great bodily injury. (Id.) He denies having any motive or intent to harm Plaintiff, denies choking him, and states that he used only that amount of force necessary to control him. (Id.) He states that he was not present during the January 16, 2017, incident with the other Defendants, was not involved in that incident, and never asked or directed anyone to harass or injure Plaintiff. (Id.)

         Defendant Navarro also presents the declaration of Hector Florendo, a Psychiatric Technician at RJDCF, who states that his duties include administering medication and assessing the mental and physical condition of inmates in connection to injuries or uses of force. (ECF No. 111-3 at 2.) He performed a medical assessment of Plaintiff on August 2, 2016, immediately following the incident with Defendant Navarro, which revealed Plaintiff was ambulatory and uninjured. (Id. at 2-3.) When questioned about his condition, Plaintiff reported he was “good, ” and Florendo found no need to refer him for further medical care. (Id. at 3.) Defendant Navarro also presents the declaration of his attorney, who deposed Plaintiff and attaches excerpts of Plaintiff's deposition transcript to her declaration. (ECF No. 111-4 & Ex. A.)

         2. Defendants Romero and Valdovino's Motion for Summary Judgment

         Defendants Romero and Valdovinos present their own declarations, as well as declarations from a correctional officer and a nurse at RJDCF. (ECF No. 116.) Defendant Romero states that on January 16, 2017, he was processing inmates into the dining hall when Plaintiff approached him “at approximately 7:30 a.m. and aggressively said to me, ‘give me my mothafuckin food nigga!'” (ECF No. 116-8 at 1-2.) Defendant Romero states that he checked the pre-printed list of inmates who were authorized to receive kosher meals, and because Plaintiff's name was not on the list, Defendant Romero had no authority to allow him to be served a kosher meal. (Id. at 2.) He instructed Plaintiff to enter the dining room and receive a regular meal, but Plaintiff “quickly advanced towards me and yelled at me, ‘fuck you and fuck your tray nigga!'” (Id.) Plaintiff then swung his left fist at Defendant Romero's face but did not make contact. (Id.) Plaintiff then swung his right fist at Defendant Romero, hitting him in the upper chest. (Id.) He ordered Plaintiff to get down but Plaintiff ignored the order. (Id.)

         Defendant Romero states that he feared for his safety and the safety of other correctional staff and inmates in the area, and in order to prevent a further attack by Plaintiff he stepped back, unholstered his state-issued OC spray device and disbursed a three-second burst in Plaintiff's face from about three feet away. (Id.) Only then did Plaintiff comply with the order to get down into a prone position. (Id.) Defendant Romero states that Defendant Valdovinos then placed Plaintiff in handcuffs and removed him from the area, while Defendant Romero went to the Triage Treatment Area where he received a medical evaluation which noted pain and redness on his chest. (Id.)

         Defendant Romero states that he was not involved with Plaintiff's decontamination from the OC spray, he did not use force with a sadistic or malicious intent to cause him harm, pain or injury, he acted at all times in furtherance of a legitimate penological purpose to maintain safety and security and to protect himself and others, and he has no personal animosity toward Plaintiff. (Id. at 2-3.) He states he did not retaliate against Plaintiff for filing an inmate appeal against Defendant Navarro and was not aware of any such appeal. (Id.) He wrote an RVR charging Plaintiff with battery on a peace officer, and states that Plaintiff refused to attend the hearing and was found guilty and assessed 150 days loss of good-time credit. (Id.) Plaintiff's CDCR file shows the January 16 incident was his third offense for battery on a peace officer or battery on a non-prisoner. (Id.)

         Defendant Valdovinos states in his declaration that he was stationed at the front of the culinary line monitoring inmates entering the dining hall for their morning meal on January 16, 2017, when, about 7:30 a.m., he saw Plaintiff approach Defendant Romero and demand a kosher meal. (ECF No. 116-10 at 1.) He heard Defendant Romero tell Plaintiff he was not on the kosher meal list but could enter the dining room for a regular meal. (Id. at 2.) Plaintiff yelled: “Give me my mothafuckin food nigga!” (Id.) Plaintiff then aggressively moved toward Defendant Romero and punched him in the chest with his right fist. (Id.) Defendant Valdovinos states that he and Defendant Romero both ordered Plaintiff to the ground but he ignored them. (Id.) He saw Defendant Romero step back, unholster his state-issued MK-9 OC spray device, and disburse a three-second burst of spray from about three feet away which struck Plaintiff in the face. (Id.) Plaintiff assumed the prone position and Defendant Valdovinos handcuffed him behind his back. (Id.) Defendant Valdovinos states that he was unaware Plaintiff had any medical restrictions requiring him to be handcuffed with his hands in front. (Id.)

         Defendant Valdovinos pulled Plaintiff to his feet and escorted him to the Facility C gym, allowing him to decontaminate from the OC spray with fresh air on the way. (Id.) When they arrived at the gym, Defendant Valdovinos offered Plaintiff “the opportunity to decontaminate from the OC spray with cool running water, ” but Plaintiff “voluntarily declined, stating ‘No, I'm good, and when I get back I'm going to get C/O Romero.'” (Id. at 3.) Defendant Valdovinos states that at 7:38 a.m., LVN Ominigbo arrived to conduct a healthcare assessment of Plaintiff, at which time Defendant Valdovinos released Plaintiff from his handcuffs and placed him in a holding cell. (Id.)

         Defendant Valdovinos started a Holding Cell Log to document Plaintiff's condition, which he attaches as Exhibit A to his declaration. (Id.) He states the log shows that correctional officer Barrozo checked on Plaintiff's welfare every fifteen minutes while he was in the holding cell until he was released at 10:10 a.m., and that Plaintiff refused decontamination prior to being placed in the cell. (Id.) Defendant Valdovinos states that he did not use force on Plaintiff with a malicious or sadistic intent, that he acted with the legitimate penological purpose to maintain safety and securing of the institution and protect himself, has never had any personal animosity toward Plaintiff, and did not retaliate against him for filing inmate grievances against Defendant Navarro as he was unaware of any such filings. (Id. at 3-4.)

         Defendants Romero and Valdovinos also present the declaration of E. Ominigbo, a Licensed Vocational Nurse, who states that he was on duty at RJDCF on January 16, 2017, when, about 7:35 a.m., he was called to medically evaluate Plaintiff. (ECF No. 116-6 at 2.) Nurse Ominigbo states it was evident Plaintiff had been exposed to OC spray, “but had no other injuries and did not complain of any other injures, and he needed no further medical treatment.” (Id.) LVN Ominigbo further states that Plaintiff “had been offered an opportunity to decontaminate, and he was decontaminated by being removed from the area where the OC spray was used, and exposed to fresh air. I also specifically instructed inmate Jackson on self-decontamination techniques.” (Id.)

         Defendants present the declaration of correctional officer M. Barrozo, who states that Defendant Valdovinos placed Plaintiff in a holding cell and started a “holding cell log to document [Plaintiff's] well being while he was in the holding cell.” (ECF No. 116-4 at 2.) Correctional officer Barrozo states that the holding cell log, attached as an exhibit to his declaration, indicates that Defendant Valdovinos checked on Plaintiff at 7:55 a.m., and correctional officer Barrozo then took over monitoring Plaintiff. (Id.) He states the log indicates he routinely checked on Plaintiff's welfare while he was in the holding cell until Plaintiff was escorted to the Administrative Segregation Unit at 10:10 a.m. (Id.)

         3. Plaintiff's Opposition

         Plaintiff attaches his own declaration to his Opposition, stating that he went to the dining hall on July 26, 2016, to retrieve the one hot meal he receives every day but was served a cold kosher meal, and then returned to his cell and covered his window with cardboard in order to speak with the sergeant of the Facility C Enhanced Outpatient Program to discuss receiving cold meals. (ECF No. 126 at 55.) However, Defendant Navarro and another correctional officer “without any inkling opened the cell door, ” and Defendant Navarro stood in the door with his OC spray unholstered and threatened to spray if he did not submit to rear handcuffs. (Id.) Plaintiff warned Defendant Navarro he had a medical order for waist restraints “because rear-cuffing was painful in light of my physical condition, ” but Defendant Navarro's “response was for me to step out or he would ‘spray my black ass.'” (Id.) He states that Defendant Navarro refused to honor his waist restraint order, handcuffed him with his hands behind his back, and led him to a shower. (Id.) Defendant Navarro then placed him in the shower, locked the door, and ordered him to stick his hands though the port. (Id.) Defendant Navarro removed the handcuffs and conducted an unclothed body search. (Id.) As he was being searched, Defendant Navarro said: “Yea I see you like to write up officers. Well the RJD Facility C officers were dirty cops and they will set me up and do whatever they have to do to get me off the yard.” (Id.) Plaintiff states Defendant Navarro left him in the shower as he joined the other officer in searching his cell, and when Defendant Navarro returned he once again handcuffed him with his hands behind his back.[2] (Id. at 56.)

         Defendant Navarro led Plaintiff back to his cell, placed him inside, closed the door and ordered him to put his hands out the food port to be uncuffed, which “was painful as I suffer from a painful physical condition.” (Id.) He states that: “I noticed my cell was in disarray and my television was broken and my sodas and deodorant was missing.” (Id.) He filed a 602 inmate appeal about the incident on July 27, 2016, and states that: “Navarro was made aware of this by sergeant D. Hampton, who then devised a plan to retaliate against me by issuing a false Rules Violation Report.” (Id.)

         Plaintiff states that on August 2, 2016, he was released for evening meal service after having constantly complained to the correctional staff that his evening kosher meal which was supposed to be served hot was being served cold. (Id. at 56-57.) When he picked up his meal and found it was cold: “I became frustrated and upset and tore the meal into pieces and threw the meal on the ground in front of the facility C dining hall then returned to housing unit 14.” (Id. at 57.) Defendant Navarro and correctional officer Martin were seated at a podium in the middle of the unit, and Plaintiff states that as he walked up the stairs to his cell: “I grabbed a trash can sitting atop of the stairs and tossed it over the tier in the opposite direction nowhere near the direction of Navarro and Martin, the trash can landed near the (A) and (B) prisoner telephones where the trash littered the ground.” (Id.) Defendant Navarro “walked alone towards the bottom of the stair case and gave verbal orders for me to come down and ‘pick up the trash.'” (Id.) Defendant Navarro “again stated ‘pick it up,' I refused and replied: ‘I'm not picking up shit.'” (Id.) Defendant Navarro activated his alarm and told Plaintiff to get down, and he complied. (Id.) When Defendant Navarro ordered him to place his hands behind his back to be handcuffed, Plaintiff “warned Navarro that I have a physical condition that requires me to be waist restrained, ” but Defendant Navarro “aggressively positioned my hands to rear-cuff me from behind and stated that ‘he did not care.'” (Id.) Defendant Navarro handcuffed him, ordered him to stand up, and said: “Yea, I got you now, you threw the trash can at me, ” as he escorted Plaintiff down the stairs. (Id. at 57-58.) Plaintiff states that:

In response to what Navarro said I replied and said something Navarro did not like. Navarro became infuriated and therefore attempted to trip me while I was subdued so that I would fall on my face. However, Navarro was unsuccessful and had fallen on the ground instead of me as inmates watched and laughed at Navarro he spontaneously stood up and placed his arm around my neck choking me to the ground. While lying on the ground Navarro placed his knee into my back kneeling on one knee utilizing all of his body weight further injuring me. I yelled and screamed for Navarro to get off my back while squirming and wiggling I shook Navarro off, during that time Navarro stated “file your paperwork now.”

(Id. at 58.)

         Plaintiff states he was then stood up and walked a short distance where correctional officer Delgado took custody of him and asked if he was okay. (Id.) He claims Defendant Navarro issued a false RVR for assault on a peace officer “in retaliation [for Plaintiff] filing grievances.” (Id. at 59.)

         Plaintiff states that after a brief stay at another institution he returned to RJDCF on January 13, 2017. (Id.) On January 16, 2017, he was released for his morning meal to the dining hall and attempted to receive his kosher meal. (Id.) When he told correctional officer Hodges he had been approved for a kosher meal, his “response was that I start over from the beginning and file a CDCR form 3030.” (Id.) He asked officer Hodges to contact the on-sight culinary food manager, but: “Hodges refused to assist me and responded ‘that he helped me the last time when I arrived at RJD but was not going to do so this time.'” (Id.) Defendant Romero told Plaintiff “you can get a tray, ” to which Plaintiff responded that his religious dietary laws precluded him from eating a tray. (Id. at 60.)

         As Plaintiff was walking away, Defendant Valdovinos stated: “Get the fuck out of here.” (Id. at 60.) Plaintiff states: “I was startled and abruptly turned around surprised at being disrespected blatantly and responded ‘what!'” (Id.) Defendant Romero “instantly whipped out his MK-9 oleoresin spray from about three feet away and began spraying me directly in my face. I did not strike Romero nor did I resist or disobey him this was an unprovoked attack.” (Id.) Plaintiff states that he was blinded by the OC spray “and immediately went down to the ground trying to cover up as Romero and Valdovinos began to pounce on me by punching and kicking me. I was then poked in ...

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