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McCurty v. Aguirre

United States District Court, N.D. California

January 16, 2020

MICHAEL MCCURTY, Plaintiff,
v.
B. AGUIRRE, et al., Defendants.

          ORDER OF PARTIAL DISMISSAL AND SERVICE

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, a state prisoner who is currently incarcerated at California Training Facility (“CTF”), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging various violations of his federal civil rights against several CTF officials. Dkt. 1 at 10-11.[1] Plaintiff also invokes this Court's supplemental jurisdiction under 28 U.S.C. § 1367 in order to bring state law claims.

         Plaintiff names the following Defendants from CTF: Correctional Officers B. Aguirre, M. Zavala, G. Morales, J. Ibarra, and G. Lopez; Correctional Sergeant C. Woods, II; Acting Warden C. Koenig; and John Does 1-5. Id. at 5. Plaintiff seeks declaratory relief and monetary damages.

         Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in a separate written Order.

         Venue is proper because the events giving rise to the claim are alleged to have occurred at CTF, which is located in this judicial district. See 28 U.S.C. § 1391(b).

         II. DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements, namely that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Legal Claims

         Plaintiff, who is African-American, alleges that on January 11, 2019, he was subjected to excessive force by Defendant Aguirre. Dkt. 1 at 6. Specifically, Plaintiff alleges that on the date of the incident, Defendant Zavala ordered all inmates to place their hands on the wall, and the inmates complied. Id. Defendant Aguirre positioned himself behind Plaintiff and told Plaintiff to put his hands on the wall. Id. Plaintiff told Defendant Aguirre, “Why are you telling me to do something I am already doing?” Id. Defendant Aguirre then grabbed Plaintiff's shirt, planted his foot and plunged his elbow into Plaintiff's back area. Id. Plaintiff hit the wall. Id. Plaintiff claims that prior to this incident he had his hands up on the wall in the position for a clothed body search. Id. Plaintiff also claims that Defendants Zavala, Morales, Ibarra, Lopez and Woods were present during the alleged use of force incident, but they failed to intervene or report the incident to their supervisor. Id. at 7. Also, Plaintiff claims that when Defendant Zavala wrote a report about the incident, Defendant Zavala did not report the alleged use of force by Defendant Aguirre on Plaintiff. Id. Instead, Defendant Zavala “deliberately limited the report to searching and did not include the other defendants.” Id. Plaintiff complained to Defendant Lopez of having pain in his back and requested to see the doctor. Id. Defendant Lopez denied Plaintiff's request to see the doctor. Id. Plaintiff then complained to Defendant Woods, but Defendant Woods denied Plaintiff's request to see the doctor and instructed him to speak with the program sergeant. Id. at 6-7. Plaintiff also claims that Defendants Aguirre, Zavala, Morales, and Ibarra were also present when Plaintiff asked to see a doctor but they failed to make “any attempt to allow Plaintiff to get medical attention for his pain.” Id. at 9.

         Also, on January 11, 2019, Defendant Zavala found an “inmate manufactured lighter (contraband) on the ground in the area where the clothed body searches were being conducted, ” but Defendant Zavala “falsified” the property receipt by stating that the contraband was removed from Plaintiff's cell. Id. at 8. Plaintiff informed Defendant Zavala that he was going to file a 602 inmate appeal against him for falsifying the report. Id. Defendant Zavala replied, “I'm going to write you a 115 [Rules Violation Report (“RVR”) . . . two can play that game.” Id. Defendant Zavala drafted an RVR for his “disruptive behavior which could lead to violence” dated January 11, 2019, stemming from the incident on that date and claiming that Plaintiff yelled various phrases about Defendant Zavala being a “racist.” Id., Ex. A1.

         On January 12, 2019, Plaintiff submitted a health care service request form in which he “complained of back pain and stiffness in his upper back and difficulty with range of motion.” Id. at 7. Plaintiff claims he is “taking the pain medication ‘Naproxen 500 mg.'” Id.

         On January 13, 2019, Plaintiff submitted a 602 inmate appeal in which he “requested, among other things, that the use of force be investigated and Defendant Aguirre explain his misconduct for his actions.” Id.

         On January 18, 2019, Plaintiff filed a 602 inmate appeal against Defendant Zavala for falsifying the ...


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