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Sims v. Diaz

United States District Court, N.D. California

October 9, 2019

DERRICK J. SIMS, Plaintiff,
v.
RALPH DIAZ, et al., Defendants.

          ORDER OF DISMISSAL WITH LEAVE TO AMEND AND DENYING PRELIMINARY INJUNCTION RE: DKT. NOS. 1, 2

          SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE

         Derrick J. Sims filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983 concerning conditions at Pelican Bay State Prison. His complaint is now before the Court for review under 28 U.S.C. § 1915A. Sims' motion for a preliminary injunction also is before the court for review.

         BACKGROUND

         This action concerns events and omissions that allegedly occurred while Sims was housed in Pelican Bay's Restricted Custody General Population (RCGP) for “alleged safety concerns.” Docket No. 1 at 8. The RCGP is described on the website of the California Department of Corrections and Rehabilitation (CDCR) as “a 96-bed unit designed as a transitional program for inmates who are recently released from the SHU to GP that have custodial/security/safety concerns.” https://www.cdcr.ca.gov/facility-locator/pbsp.

         The complaint alleges the following:

         After fourteen years in solitary confinement, Sims was moved to the RCGP on March 24, 2016. The CDCR's Department Review Board (DRB) determined that Sims would be housed in the RCGP due to safety concerns expressed by multiple confidential informants and sources deemed reliable by the CDCR. Docket No. 1 at 8.

         The DRB controls whether an inmate in the RCGP will be released from the RCGP. From 2016 through 2018, “ICC members were not referring anyone to DRB for consideration of release.” Id. at 8. In the RCGP, inmates are far from family members and receive few visits because visiting days are on weekdays rather than on weekends. There are no vocational training jobs and there is limited yard programming in the RCGP. Id. at 8-9.

         Sims is being retained in the RCGP “with his CDCR documented known non-confidential and confidential enemies, ” some of whom are informants against him. Id. at 9. This shows a “blatant [r]eckless disregard” for his well-being. Id.

         On several occasions in 2016 and 2017, prison officials received information that Sims was targeted for assault by other inmates. Id. at 9-10, 11-12. Information that Sims was targeted for assault was disclosed to Sims in 2017 and later. One such disclosure was a July 10, 2017 confidential memorandum that was disclosed to Sims on February 1, 2019 by CCII Durham. Id. at 10.

         Sims was attacked on three occasions in the RCGP. The first attack occurred on July 18, 2017, when Sims was assaulted by another inmate and sustained multiple puncture wounds and permanent nerve damage to his right thumb. Id. at 10.

         The second attack occurred on August 6, 2017, when there was a “botched attempted stabbing assault that turned into a m[e]lee” involving Sims and other inmates in which Sims was the intended target. Id. The inmates were then handcuffed. As handcuffed inmates were being picked up from the ground where they had laid prone, Sims “kicked another inmate in the face.” Id. Three to six seconds after Sims kicked the inmate, correctional officer (C/O) McDonald took Sims to the ground face first, rammed his knee into Sims' back and applied pressure until both of Sims' shoulders touched the ground - all while Sims was not resisting. Id. C/O McDonald's actions caused severe pain and impeded Sims' breathing. Id. Correctional sergeant Silva asked for Sim's prisoner identification card. C/O McDonald retrieved Sims' prison identification card from Sims' sock and gave it to Silva; at the same time, McDonald took and did not return to Sims or log into evidence the address books that were also in Sims' sock. Id. at 11. Sims later asked for the address books to be returned and McDonald said he did not have them. Id. Sims calls McDonald's actions retaliatory. Id.

         The third attack occurred on August 26, 2018, when two inmates assaulted Sims from behind. During the attack, C/O Hamner shot Sims twice with the 40-mm gun. Id. at 12. Sims suffered multiple injuries, puncture wounds, and two wounds from the 40-mm gun. (The medical report for this date states that Sims refused medical treatment and was cleared for return to administrative segregation within a half-hour. Docket No. 1-5 at 9.) Several months later, on January 28, 2019, CCII Durham wrote a “partially falsified” chrono about the attack. Docket No. 1 at 12.

         Sims has seen “Gladiator” style fights at RCGP that are being set up by prison administrators. Id. at 8. Various inmates fought with each other at RCGP. Id. at 12-14.

         DISCUSSION

         A. Review of Complaint

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under ...


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