Willard v. California Department of Corrections and Rehabilitation

          FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION [ECF NO. 17]

         Plaintiff Jesse Willard is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

         I.

         INTRODUCTION

         On September 13, 2019, the Court screened Plaintiff's complaint and found that he had not stated any cognizable claim. (ECF No. 17.) Plaintiff was granted leave to amend his complaint allegations within thirty days to attempt to cure the deficiencies identified in that order. Id.

         Plaintiff failed to comply with or otherwise respond to the Court's order and the deadline to do so has now passed. Accordingly, the Court recommends dismissal of this action for the reasons discussed below.

         II.

         FAILURE TO STATE A CLAIM

         The 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). The 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).

         A 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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. 2002).

         Prisoners 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” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         A. Complaint Allegations

         Plaintiff sets forth numerous claims arising from events that took place while he was housed at Pelican Bay State Prison (PBSP) and California State Prison-Corcoran (CSP-COR).^[1]

         In March 2011, Plaintiff arrived at CSP-COR for the first time. Between then and the time of filing the instant complaint, Plaintiff has transferred to and from three different times. CSP-COR is the central hub for the housing of homosexual inmates.

         In March 2011, Plaintiff was housed in building Z on yard B at CSP-COR. He was abruptly moved to building 5. Plaintiff was unaware at the time that the officers who worked in building 5 had a special interest in overseeing homosexual inmates. Specifically a lead officer who had worked in the California Youth Authority. Plaintiff was called to the podium after placing his property in the cell he was assigned. The lead officer began to list the “rules.” Plaintiff questioned one of the rules and the officer stated, “I know how to deal with your kind.” Over the next few months, Plaintiff was targeted by frequent “raid-like” cell searches. Often certain officers would peek into his cell during sleeping hours. At yard release, he was subjected to over zealous body searches and eventually peculiar comments were made by staff.

         In one instance, after Plaintiff was involved in a cell fight, the officer working the control tower stated, “What was that about? Domestic violence, huh?” Plaintiff ignored it. A couple days later while Plaintiff was on his way to a visit the officer stated, “Did you put on any blush.” Plaintiff told him to “not ever speak to me like that.” A few days later after leaving the education department, Plaintiff said hello to an officer working the observation tower, who responded “[y]ou are in it for shits and grins.” Plaintiff later learned this statement was a homosexual reference.

         On November 11, 2011, Plaintiff was placed in administrative segregation for disciplinary purposes. Plaintiff believes that staff had already begun to spread the rumor throughout the facility that he was homosexual, and they began to refer to Plaintiff as “Booty.” After Plaintiff was placed in his cell, he had to wait nine hours to receive his bedding, clothes, and towels. While Plaintiff was housed in administrative segregation, officers attempted to have Plaintiff cell with men they knew participated in sexually perverse acts. Plaintiff was housed next to a homosexual and a transgender inmate was housed in the cell directly beneath. When Plaintiff sought medical care for an irritated scalp, they gave him “lubricant.” Plaintiff's meals were served on a tray with “booty boy” carved into it.

         Plaintiff's disciplinary issue was referred to the Kings County Superior Court. The district attorney filed charges in December 2011. Plaintiff was given a sentence three times the average to “teach” him a lesson. In June 2018, Plaintiff appeared in the same court for a new charge. At the first meeting, the court appeared attorney stated, “you keep putting your booty on the line.”

         Plaintiff was moved to the main administrative segregation unit building in February. Plaintiff immediately noticed odd behavior by staff. Plaintiff usually received his lunch in a brown bag with missing items. On one occasion, the sergeant stated, “I am going to put an ‘S' on your jacket.” S is a label for a sexual deviant. Plaintiff responded, “You'd better not put that on me. I am no pervert.” In March 2011, Plaintiff was moved to the security housing unit. One of the officers issuing Plaintiff's personal property handed him a shampoo bottle and stated, “I better not find this rammed up your ass.” Plaintiff later discovered that the inmate he was housed with was there for exposing himself and masturbating to staff. Plaintiff was later sent across the street to another institution, but was returned to CSP-COR due to a realignment of housing mental health inmates.

         On January 29, 2017, Plaintiff returned to CSP-COR, 4 A yard, for disciplinary reasons. Plaintiff was housed in building ZR. Upon his arrival, sergeant Perez stated, “You've been here before, right?” When Plaintiff asked for a jumpsuit, Perez responded, “Shut up! If you have a question, there is a chain of command, ” to which Plaintiff stated, “No. I am not going to shut up!” Perez approached the cell and threatened to go in. Plaintiff informed Perez he could assault him but he “would not shut up.” Perez stated, “That's okay. You're going to my yard anyway.” The moment Plaintiff arrived in building ZR, the adversity began. During mealtime, the officer passing out trays would tell Plaintiff “[t]hey forgot yours. I'll have to call the kitchen[, ]” or “[t]hey forgot yours. I'll have to get one from next door.” At first, Plaintiff would receive his meals about forty-five minutes after everyone else and it was cold. Then, he began to receive food trays with a strong odor. On one occasion, Plaintiff received a tray with nothing but bread and lettuce. The officer stated, “You're a vegetarian right[, ]” and laughed. On two occasions, Plaintiff received his food trays with feces in it. He thereafter stopped accepting the meals. At the same time that his meals were being tampered with, his institutional and personal mail was being inhibited. When Plaintiff attempted to contact the mailroom, the lead guard responded that the books he ordered were “lost” three times and that he forwarded the inquiry to the mail room. An officer told Plaintiff that “[t]hey are putting bug spray in your food.”

         In March 2017, while Plaintiff was housed at CSP-COR in the administrative segregation unit, he was doing pull-ups and heard an audible snap and a physical thump near his left clavicle and left scapula simultaneously. Plaintiff completed the exercise but decided to take time off. Approximately a week later, Plaintiff began to experience severe pain in his neck, chest, shoulders, and upper-arm on his left side. Plaintiff noticed his clavicle was protruding where it meets the sternum. Plaintiff requested to see a nurse. Three hours later, Plaintiff was escorted from his cell to a holding cell in the rotunda building. A women in medical attire introduced herself as a “psyche technician” and asked him to detail the issue. She instructed Plaintiff to put in a “sick call slip” because she did not want to radio “man-down.” Plaintiff was then returned to his cell with no aid.

         On the following morning, Plaintiff sought medical treatment. On April 17, 2017, Plaintiff saw a registered nurse and described the issue. The protruding clavicle was noted, and he was sent for an x-ray.

         On April 18, 2017, Dr. Gill informed Plaintiff that the x-ray was normal and there was no follow-up needed. Plaintiff saw a registered nurse again around May or June 2017, and the nurse suggested that he was “faking.” Plaintiff filed an inmate grievance in April. Plaintiff had proof that his books had reached the prison and proof of forged documents. Plaintiff was interviewed at the first level by sergeant Morrow. During the interview, it became clear that Morrow either turned a blind eye to the misconduct or was involved, and he refused to review the documents. After the grievance was denied, Plaintiff submitted it to the second level review. However, the grievance ultimately disappeared, and when he wrote to the appeals office he was advised that it was never resubmitted. Around this time, Plaintiff began to seek medical care for an injury. It was crystal clear that the medical staff were ordered not to provide care. Plaintiff continued not to accept the “poisoned” food trays.

         On July 2, 2017, Plaintiff was moved to building 4R. When Plaintiff received his first breakfast tray, he noticed the chemical smell and poured it into the toilet. When officer Salcedo picked up the tray he smiled and said, “Was everything good?” Sometime later, Plaintiff was served a lunch with cheese slices and one of them was mostly covered in blood. Plaintiff examined the wrapper and discovered it had not been opened. However, upon further inspection, he discovered a needle size hole.

         In approximately the third week of July, Plaintiff had an interview with a lieutenant. Plaintiff explained the issues, and he stated, “Sounds like you are just ‘bitching.' I'm going to be honest with you. You are not going to get any help from in here. Your best bet would be to get an outside entity.” It became immediately evidence that the culture of staff misconduct was a known affair and common practice among staff.

         On August 4, 2017, Plaintiff was transferred back to the facility across the street. When he arrived, Plaintiff discovered that CSP-COR had “lost” his personal property. Plaintiff filed a grievance, but did not receive his property until two months later.

         On September 18, 2017, Plaintiff saw registered nurse Lindsey, at California Substance Abuse and Treatment Facility and State Prison, who assessed the situation and noted a “slight asymmetry at the left clavicle when compared to the right.” Plaintiff was referred to a doctor. However, Plaintiff was transferred back to CSP-COR for disciplinary reasons before the follow-up appointment.

         On November 29, 2017, Plaintiff returned to CSP-COR for disciplinary reasons and housed in 4A yard, building 4L. Plaintiff did not know any of the officers and did not expect the “torture” to continue. Through the months of December 2017 to June 2018 the following took place:

While serving breakfast, Officer Shelby often claimed to have forgotten my milk or my entire meal. He regularly stated that he had to go next door to get it. (It became known to me that each time I was told, “They forgot your meal. We have to go and get it next door, ” the staff had pre-arranged for someone to add harmful substances to my food. In some cases, blood, feces, and other bodily substances, but usually “bug spray.” This same officer came to work one morning with a bunch of huge bananas he brought from home. He and officer Salcedo made a show of pulling the bananas from beneath the car. Officer Salcedo said, “We bet on which you'd choose. A banana or an apple. I bet you want a banana.” Officer Shelby frequently made comments about “throwing your back out.” During [an] escort he began to talk about bug spray. “I heard you could use the stuff to clean gunk from your headlights. Wow! Imagine what it's doing to your body.” Around this time, I noticed my skin and scalp became irritated. My stomach ached, my urine was cloudy, and I had sores inside my nostrils. I also ...