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Stuckey v. Juarez

United States District Court, E.D. California

July 23, 2019

ANDRE KENNETH STUCKEY, Plaintiff,
v.
J. JUAREZ, et al., Defendants.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (ECF NO. 15) THIRTY DAY DEADLINE

         Plaintiff Andrew Kenneth Stuckey is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff's two previously filed complaints, and granted Plaintiff leave to either file a second amended complaint or notify the Court of Plaintiff's intent to proceed on the claim the Court found to be cognizable. (ECF Nos. 12, 14.) Currently before the Court is Plaintiff's second amended complaint filed June 7, 2019. (ECF No. 15.)

         I.

         SCREENING REQUIREMENT

         The 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).

         A 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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 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 Cir. 2002).

         Prisoners 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” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         ALLEGATIONS IN THE SECOND AMENDED COMPLAINT

         The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.

         Plaintiff is in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) and is currently housed at Pelican Bay State Prison. Plaintiff brings this action against the following Defendants: (1) Sergeant J. Juarez (“Juarez”); (2) Sergeant J. Pereira (“Pereira”); (3) Sergeant Peacock (“Peacock”); (4) Lieutenant Chanelo (“Chanelo”); (5) Officer T. Reyna (“Reyna”); (6) Officer J. Fernandez (“Fernandez”); (7) Officer J. Velasquez (“Velasquez”); (8) Officer Schlichting (“Schlichting”); (9) Officer I. Maldonado (“Maldonado”); (10) Officer Marquez (“Marquez”); (11) Officer Salcedo (“Salcedo”); (12) Officer Gaddis (“Gaddis”); (13) Officer Tafoya (“Tafoya”); (14) Nurse Vitto (“Vitto”); (15) Nurse Palomino (“Palomino”); and 16) Doctor I. Patel (“Patel”). All Defendants are alleged to have been employees at Kern Valley State Prison (“KVSP”) at the time relevant to this complaint. The incidents alleged in the complaint occurred while Plaintiff was housed at KVSP.

         A. Plaintiff's Deliberate Indifference Claim for Failure to Protect

         In summary, Plaintiff argues that Defendants Juarez, Pereira, Maldonado, Reyna, Velasquez, Fernandez, and Schlichting failed to secure the yard during a “code 1” alarm and allowed Inmate Andre Poumele (“Inmate Poumele”) to get up from the prone position without shooting him, and watched as he ran at least sixty (60) feet to where Plaintiff was laying, and watched as Inmate Poumele attacked Plaintiff without a single shot being fired. Plaintiff argues these Defendants disregarded yard policies and failed to neutralize Inmate Poumele, allowing the attack to continue.

         Prior to the attack, KVSP's yard policy required inmates to go in the prone position when there is a disturbance in the yard, and Plaintiff states that any inmate that refuses will be seen as the aggressor and immediately shot without warning and each building had a sign stating no warning shot will be fired. Plaintiff highlights that 2014 was a very violent year at KVSP in terms of race-based conflicts, disturbances, and riots, with many race-based conflicts occurring in the large recreation yard. Plaintiff alleges Defendants Juarez, Pereira, Maldonado, Reyna, Velasquez, Fernandez, and Schlichting were on scene for most or all of the race-based incidents that had occurred in the recreation yard.

         On October 22, 2014, an inmate named Joey Maiava (“Inmate Maiava”) rushed into the dining hall office and slammed the door behind him. An Officer Armenta gave a verbal order for Inmate Maiava to get out of the office, and the inmate responded: “I cant [sic] those motherfuckers are trying to kill me.”[1] Inmate Maiava, who Plaintiff identifies as Samoan, pointed at two black inmates who were in the area. Kitchen cook Armenta again ordered Inmate Maiava to get out of the office. Inmate Maiava repeatedly said he couldn't because the other inmates were going to stab him.

         An Officer Nuno then attempted to enter the office but Inmate Maiava was holding the door shut. Kitchen cook Armenta activated her personal alarm. Officer Nuno forced his way into the office and tried to restrain Inmate Maiava who resisted. Responding Officers Cortina, Campas, and Bennet arrived to assist Officer Nuno in applying restraints to Inmate Maiava who then became combative and started yelling “they're trying to kill me, ” and the officers then forced Inmate Maiava to the ground where they placed restraints on him. While conducting a body search, officers found a weapon and narcotics. Plaintiff alleges that officers Cortina, Campas, Bennett, and kitchen cook Armenta then realized this was a race-based conflict.

         Defendant Juarez and then Pereira arrived and were informed of the incident. Plaintiff claims at this point, Juarez and Pereira were aware that the incident was a race-based conflict. Defendant Juarez instructed officers P. Marin and S. Ochoa to escort Inmate Maiava to the A-yard program office through the recreation yard. While escorting Inmate Maiava, all of the inmates in the recreational yard were in the prone position in the grass. “Plaintiff, who is black, was located in the ‘black' area in front of the Building Four.” “Inmate Poumele, who is Samoan (other), was located in the ‘other' area in between Building Two (2) and Building Three (3).” Plaintiff states there was a sixty (60) to eighty (80) yard distance between him and Inmate Poumele. Juarez and Pereira watched as officers P. Marin and S. Ochoa escorted Inmate Maiava through an area in the yard between where Plaintiff and Inmate Poumele was laying. Plaintiff alleges Defendants Juarez and Pereira failed to instruct Defendants Maldonado, Reyna, Velasquez, Fernandez, and Schlichting to secure the area between the black inmates and other inmates, despite their personal knowledge of the large number of race-based conflicts in the recreational yard in 2014.

         While being escorted through the yard, Inmate Maiava yelled something in his native language to Inmate Poumele, who got up from the prone position and ran toward Plaintiff. At this point Plaintiff alleges that “none of the Defendants ordered Inmate Poumele to get down; and they did not shoot or try to neutralize him.” (ECF No. 15 at 10.)[2] Plaintiff was laying in the prone position with his back to Inmate Poumele who ran approximately sixty (60) to eighty (80) yards to where Plaintiff was laying and cut Plaintiff's head three times with an inmate manufactured weapon which appeared to be a razor blade with a string forming a makeshift handle. Plaintiff states the attack lasted approximately thirty to forty seconds. Plaintiff alleges none of the Defendants attempted to stop Inmate Poumele as he ran and attacked Plaintiff and that they all just watched in a passive manner while the attack continued for thirty to forty seconds. Plaintiff claims the Defendants had the ability to protect Plaintiff while being attacked, but they “chose not to” by not utilizing their weapons. Plaintiff emphasizes that thirty to forty seconds was more than enough time for Defendants to deploy weapons, but “they just stood there, idle, and did nothing but watch the attack.” Plaintiff argues that regardless of whether Defendants knew it was a race-based conflict, the fact that he was being attacked for thirty to forty seconds only 10-20 yards from where they were standing would have put any officer on notice to deploy weapons, even without supervisory instructions.[3]

         After the other black inmates witnessed the attack for thirty to forty seconds without officer intervention, they jumped up to protect Plaintiff. Plaintiff states it was only at this point that Juarez announced a “code two” on the radio instructing the officers to form a skirmish line, and then Pereira instructed the officers to move forward toward the rioting inmates. Then, Inmate Bautista witnessed “Inmate Poumele being neutralized by several black inmates, ” and got up from the prone position to help Poumele. It was only then that Defendants Maldonado, Reyna, Velasquez, Schlichting, and Fernandez began to deploy their weapons. Juarez then announced a code three on the radio.

         Defendant Maldonado used a non-lethal weapon (40mm multi-launcher) aimed at the right thigh area of a black inmate named Ellis, but did not aim at the aggressor of the situation, Inmate Poumele. Defendant Maldonado was fifteen feet away from the fight scene between Inmate Poumele and the black inmates. Defendant Reyna used another non-lethal weapon (MK-9 foam solution canister) and aimed at the neck and head area of two black inmates named Ellis and Crathin, bit did not aim at Inmate Poumele. Schlichting, Velasquez, and Fernandez, who were twenty feet away from the fight scene between Inmate Poumele, Bautista, and the black inmates, used CN tactical grenades and tossed them in the area of the fight scene. The force from the weapons “had the desired effect” and caused the black inmates to separate from Inmate Poumele and Bautista “who all proned out in the grass.” The officers then performed a “cuff and cover restraint sweep” on “all involved and non-involved” inmates in the yard and dining area.

         At approximately 9:45 a.m., the Investigative Services Unit (“ISU”), inclusive of Defendants Chanelo, Peacock, Gaddis, Tafoya, and Marquez, arrived at the scene. Chanelo, Gaddis, and Tafoya established a perimeter around the area with yellow crime scene tape. Chanelo and Gaddis identified evidentiary items by placing yellow evidence markers next to each item. Chanelo photographed the crime scene and all inmates identified as being involved in the altercation. Tafoya assisted Chanelo by collecting evidentiary items, and upon completion, Chanelo returned to the ISU office where he downloaded digital photographs to the ISU evidence computer. Chanelo copied the photographs to a blank CD-R, and secured the evidence into the ISU room. Defendant Tafoya returned to the ISU office to process photos and other evidence. During the processing of the crime scene, a weapon consisting of a razor blade and string handle was found, which is the same weapon that Plaintiff saw Inmate Poumele with when he attacked Plaintiff.

         Plaintiff informed Defendants Chanelo, Peacock, Salcedo, Marquez, Gaddis, and Tafoya that he had been cut in the head three times, however Plaintiff states they failed to interview him as to the exact cause of the injuries and failed to inquire as to who the attacker was. Plaintiff notes that Samoan Inmate Poumele was interviewed as to the exact cause of his injuries and who injured him. Inmate Maiava and Inmate Poumele were charged with rules violations for possession of a weapon. Inmates Thomas and Talley were charged with battery on an inmate. All other inmates, including Plaintiff, were charged with participation in a riot, and Plaintiff was found not guilty of such charge on December 2, 2014.

         Plaintiff states that all of the Defendants named above were deliberately indifferent to Plaintiff's safety, resulting in his injuries.

         B. Plaintiff's Claim for Deliberate Indifference Relating to Medical Injuries

          Plaintiff claims that Defendants Vitto, Palomino, nurses in the prison, and Defendant Patel, a doctor, were deliberately indifferent to Plaintiff's injuries, refused to refer him to a doctor trained in dealing with head injuries, and delayed his head x-rays for a year after they were ordered by another doctor. Along with other medical staff, Vitto and Palomino responded to the incident at approximately 9:50 a.m. and completed medical reports for all involved inmates. Defendant Vitto documented Plaintiff's head injuries on the medical report. At this point Plaintiff had blood streaming from his injuries, was experiencing pain in his head. Vitto notified Palomino of Plaintiff's head injuries, and Plaintiff states he notified “Defendants” that ...


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