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Tunstall v. Bick

United States District Court, E.D. California

September 13, 2019

ROBERT WILLIAM TUNSTALL, JR., Plaintiff,
v.
JOSEPH BICK, et al., Defendants.

          ORDER

          DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's third amended complaint (ECF No. 57, docketed as plaintiff's second amended complaint). Plaintiff alleges Defendants violated his rights under the Americans with Disabilities Act (ADA) as well as his First Amendment, Eighth Amendment, and Fourteenth Amendment rights under the United States Constitution.

         I. SCREENING REQUIREMENT AND STANDARD

         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 it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

         The Federal Rules of Civil Procedure require complaints contain a “…short and plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed.R.Civ.P. 8(a)(1)). 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (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 (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 (quotation marks omitted); Moss, 572F.3d at 969.

         II. PLAINTIFF'S ALLEGATIONS

         Plaintiff names the following Defendants: (1) Joseph Bick (2) Nathaniel K. Elam (3) Michael Felder (4) J. Lewis (5) J. Spaulding (6) Lt. Lee (7) Balanon (8) Doss (9) Spada (10) D. Britton (11) E. Spata (12) T. Camper (13) S. Perez (14) M. Hemenez (15) Rabbon (16) S. Spaulding (17) C. Lacy (18) C. Burnett (19) F. Enyeart (20) J. Vernon (21) M. Crum (22) J. Kelly (23) Baker (24) D. Rodgers (25) Doe Defendant “Asian Nurse”. See ECF No. 57, at 1-12. Plaintiff's complaint is largely written in a narrative format and none of the claims are clearly identified. In reviewing the complaint, the Court has identified ten claims.

         First, Plaintiff alleges Defendants Joseph Bick and Nathaniel K. Elam violated his Eighth Amendment rights to adequate medical care because both Defendants denied Plaintiff treatment for his neurological and medical issues resulting from a prior brain surgery. Id. at 1-2. Plaintiff alleges Defendants Michael Felder and J. Lewis possessed the authority to inform Warden R. Fox of the denied medical care, but because they failed to do so, they too violated his Eighth Amendment rights to adequate medical care. Id. at 4.

         Second, Plaintiff alleges Defendants J. Spaulding and Lt. Lee did not read him his Miranda Rights when he received a Rules Violation Report (“RVR”). Id. at 5-6.

         Third, Plaintiff alleges Defendant Balanon violated his Fourteenth Amendment right to Due Process because Defendant Balanon did not meet with Plaintiff before the RVR hearing and was not present during the RVR hearing. Id. at 6. Plaintiff alleges he is entitled to a staff assistant during disciplinary hearings because he is developmentally disabled, and his hearing, vision, and mobility is impaired. Id.

         Fourth, Plaintiff alleges Defendants J. Spaulding, Doss, Spada, D. Britton, and E. Spata violated the Americans with Disabilities Act (“ADA”) by not using “effective communication” because their correspondence with Plaintiff was not in writing. Id. at 7, 9, 12.

         Fifth, Plaintiff alleges Defendant Lee retaliated against him, in violation of his First Amendment rights, by issuing an RVR to Plaintiff because he wanted his Miranda Rights read and an attorney present before a disciplinary hearing commenced. Id. at 7.

         Sixth, Plaintiff alleges Defendants T. Camper, S. Perez, M. Hemenez, L. Rabbon, and S. Spaulding violated his Eighth Amendment right against excessive force. Id. at 8. Plaintiff alleges while he was sitting up on a gurney and “for no just cause, ” the Defendants attacked and assaulted Plaintiff. Id. at 8-9. Plaintiff also alleges “Asian nurse doe defendant” violated his Eighth Amendment right against excessive force when the Doe Defendant dropped his left knee on Plaintiff's hand, shoved his right knee into Plaintiff's abdomen, and threatened to push Plaintiff off the gurney. Id. at 8. Plaintiff claims he was instructed by the Department of Justice to contact the Federal Bureau of Investigation, and after completing an investigation, all Defendants'employment with the California State Prison were terminated. Id. at 10.

         Seventh, Plaintiff alleges Defendants C. Lacy, C. Burnett, F. Enyeart, J. Vernon, M. Crum, and J. Kelly violated his Fourteenth Amendment rights to due process when they did not respond to his 602 grievance forms in a timely manner or provide Plaintiff a notice of delay. Id. at 10.

         Eighth, Plaintiff alleges Defendant Baker violated his Eighth Amendment rights when he threatened to physically assault Plaintiff with handcuffs if Plaintiff left his hospital bed again. Id. at 11. Plaintiff alleges he left his hospital bed in the first place to use the restroom. Id.

         Ninth, Plaintiff alleges Defendant D. Rodgers violated his Fourteenth Amendment right to due process by falsifying an RVR he issued to Plaintiff that stated he communicated with Plaintiff in writing, although Defendant D. Rodgers is “unable to produce the hand-written notes used at the RVR hearing.” Id. at 12.

         Tenth, Plaintiff alleges his First Amendment rights were violated because he was denied access to the law library, but does not specifically name a ...


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