United States District Court, E.D. California
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
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.)
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).
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).
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.
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.
IN THE SECOND AMENDED COMPLAINT
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.
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.
Plaintiff's Deliberate Indifference Claim for Failure to
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 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.
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.” 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.
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.
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.
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
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
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.
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.
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.
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.
states that all of the Defendants named above were
deliberately indifferent to Plaintiff's safety, resulting
in his injuries.
Plaintiff's Claim for Deliberate Indifference Relating to
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 ...