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Davis v. Bolanos

United States District Court, N.D. California

September 17, 2019

JEROME MARKIEL DAVIS, Plaintiff,
v.
CARLOS BOLANOS, et al., Defendants.

          ORDER ORDER OF DISMISSAL WITH LEAVE TO AMEND RE: DKT. NO. 1

          SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE

         Jerome Markiel Davis, an inmate currently housed at San Quentin State Prison, filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A.

         BACKGROUND

         Davis claims that officials at the Maguire Correctional Facility in Redwood City knowingly served him food that had been tampered with and failed to properly process his grievances and mail about the food tampering.[1] He never saw any of the food tampering, and instead believes it happened based on symptoms he experienced after eating on several occasions.

         The complaint alleges the following:

         The events occurred at the Maguire Correctional Facility in August - February 2019, where Davis was housed for a trial. At the time, Davis was a convicted prisoner of the State of California and had been transferred to the jail on July 11, 2018, for a state trial. Docket No. 1 at 5, 12.

         Upon his arrival at the jail, Davis told correctional officer (C/O) Sharma that there was a “contracted hit on him by the Nortenos, ” who knew of his arrival. Id. at 5-6. Sharma moved Davis to administrative segregation, away from the general population. Id. at 6. However, general population inmates, including Nortenos, worked in the kitchen. Sharma did not prevent the Nortenos from continuing to work in the kitchen; “as a result, [Davis'] meals were tampered with.” Id. at 6. The Nortenos could figure out which meal was Davis' meal because his meals were labeled with his name due to his participation in a kosher diet plan. See Id. “At times [Davis] would find long pieces of plastic in his milk carton, upside down crosses-(anti-Christ) carved into his apples, bleeding from the mouth after eating, stomach pains, dizziness, and chest pains.” Id. The milk cartons that allegedly had large pieces of plastic inside were sealed milk cartons. Id. at 12.

         Sheriff Bolanos, undersheriff Robinson, and lieutenant Reynolds were made aware of but did not investigate Davis' claims of food tampering or take precautionary steps to prevent the food tampering from happening again. Id. at 6-8. (Although Davis alleges that no investigation was done, he also alleges that Reynolds interviewed him, determined that Davis had no proof of his allegations, and sent a notice of the investigation informing Bolanos and Robbins that Davis' “allegations of food tampering, conspiracy, and corruption were unfounded.” Id. at 7, 11. Those allegations describe an investigation, even if it was not an elaborate one.) Bolanos and Robbins are liable as supervisors because they did not require that food be under constant watch to avoid tampering. Id. at 8. They let civilian staff oversee the inmates making the food but neither staff nor food handlers had body cameras to capture all activity, and no cameras were in place to capture the activity in transporting the food between facilities. Id. at 8-9. The food tampering takes place in the “known blind spots, which then creates a conspiracy.” Id. at 9. Sheriff Bolanos and Undersheriff Robbins failed to adequately train and supervise the employees that work in the kitchen, although the need for such training and supervision “was obvious after plaintiff's numerous allegations of food tampering” and the injuries to plaintiff caused by the food tampering. Id. at 10. Reynolds defamed Davis by telling him that he lacked proof of his allegations and that he was lying, and then sending a notice of his investigation to Bolanos and Robbins. Id. at 11.

         C/O Hedgecock assisted in serving a meal to Davis on October 13, 2018, after which Davis experienced symptoms and called for medical help. Hedgecock called the mental health department instead of the medical department for help, and told the mental health staff that Davis made false claims of food tampering. Id. at 12. “An inmate who assisted in serving [Davis'] food overheard [Davis'] plea for help on the intercom; then came over to [his] cell, and said, - ‘you feel dizzy, because me, and my homies do big hits.'” Id. at 12 (brackets added; punctuation in source). To Davis, this meant that the Norteno inmate and “his homies know of the contracted hit” on Davis and were “attacking” his food. Id. Davis contends that Hedgecock knew the food was being tampered with because food tampering had occurred in August in the same jail dorm, a classification card stated why Davis was in administrative segregation, and Hedgecock also knew the food was tampered with because Hedgecock heard the inmate state that the inmate and his “‘homies do big hits'” yet “acted like he did not hear.” Id. at 13. (The inmate's statement was, however, made after the food had been served and after Davis sought medical help, which undermines the notion that it shows that Hedgecock earlier knew he was serving food that had been tampered with.) Davis claims that Hedgecock is liable for an Eighth Amendment violation, an equal protection violation, retaliation, interference with religious freedom, intentional assault, and defamation.

         Later that day (October 13), Davis wrote a grievance about food tampering. Hedgecock took the grievance from the mail and ripped it up. Id. at 20-22. (Contradicting himself, Davis states that he included that grievance in a habeas petition he mailed on October 14. Id. at 25.)

         On October 14, 2018, Davis wrote a grievance about the food tampering and Hedgecock's destruction of his grievance. He gave the grievance to Ramirez to process, but Ramirez never turned it in to be processed and Davis never received a response. Id. at 24. (Contradicting himself, Davis states that he included that grievance in a petition he mailed later on October 14. Id. at 25.)

         Also on October 14, 2018, Davis prepared a petition for writ of habeas corpus to send to the California Supreme Court about the October 13-14 incidents. Id. He handed to C/O Sharma a sealed envelope containing the petition as well as the grievances that were written on the incidents involving Hedgecock (which, contradictorily, Davis alleged had been destroyed or confiscated by Hedgecock and Ramirez). Compare Id. at 25 with Id. at 22, 24. Later that night, Sharma went downstairs, pulled the legal mail, and put white-out all over the grievance written on Hedgecock and signed by Ramirez on October 14. Id. at 25. When Davis received a copy of his petition from the court, the grievance was unreadable. Id. Davis contends that Sharma's conduct amounted to a due process violation, mail tampering, mail fraud, and cruel and unusual punishment. Id. at 25-28. Davis does not allege any facts showing his allegations of misconduct by Ramirez to be anything more than speculation, as he does not allege that Ramirez did anything wrong in Davis' presence.

         On October 21, 2018, Davis wrote a complaint to sheriff Bolanos and gave it to C/O Maier. Later that day, Maier went to the mail bag, pulled out Davis' letter, and marked it “return to sender.” Id. at 29. Davis received the letter outside the envelope on November 10, 2018, with no correspondence from the recipient. Davis contends this amounted to mail theft, mail tampering, and a due process violation by officer Maier. Davis does not allege any facts showing his allegations of misconduct by Maier to be anything more than speculation, as he does not allege that Maier did anything wrong in Davis' presence.

         Sergeant Zuno spoke to Davis on an unstated date concerning Davis' grievances and told Davis that he would investigate. Zuno did not investigate however. Davis contends that, because there was no investigation, ...


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