United States District Court, N.D. California
ORDER ORDER OF DISMISSAL WITH LEAVE TO AMEND RE: DKT.
ILLSTON, UNITED STATES DISTRICT JUDGE
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. §
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. He never saw any of the food tampering,
and instead believes it happened based on symptoms he
experienced after eating on several occasions.
complaint alleges the following:
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.
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
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.
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
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.)
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.)
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.
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.
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, ...