Sim v. Duran et al

Filing 22

ORDER directing Office of the Clerk to randomly assign a District Judge to this action. FINDINGS and RECOMMENDATIONS recommending dismissal of certain claims and defendants re 9 , 10 , 11 , 12 signed by Magistrate Judge Stanley A. Boone on 11/30/2017. Case assigned to and referred to District Judge Dale A Drozd. The new case number is 1:16-cv-01051-DAD-SAB-(PC). Objections to F & R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HWA SUNG SIM,

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Plaintiff,
v.

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MONICA DURAN, et al.,

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Defendants.

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Case No.: 1:16-cv-01051-SAB (PC)
ORDER DIRECTING OFFICE OF THE CLERK
TO RANDOMLY ASSIGN A DISTRICT JUDGE
TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
[ECF Nos. 9, 10, 11, 12]

Plaintiff Hwa Sung Sim is appearing in forma pauperis in this civil rights action pursuant to 42
U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction on August 15, 2016. (ECF

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No. 5.) To date, Defendants have not consented or declined to United States Magistrate Judge

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jurisdiction.

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On March 20, 2017, the Court screened Plaintiff’s first amended complaint and found that it

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stated a cognizable claim against Defendant Duran for excessive force and against Dr. Johal for

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deliberate indifference to a serious medical need in violation of the Eighth Amendment. (ECF No.

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12.) However, the Court found that Plaintiff failed to state any other cognizable claim against any

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other Defendants. (Id.) Plaintiff was directed to either file a second amended complaint or notify the

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Court of his intent to proceed only on the claims found to be cognizable. (Id.)

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On April 6, 2017, Plaintiff notified the Court of his intent to proceed only on the claims found

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to be cognizable. (ECF No. 11.) Therefore, on April 7, 2017, the Court found that service was

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appropriate as Plaintiff’s claims against Defendant Duran for excessive force and against Dr. Johal for

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deliberate indifference to a serious medical need in violation of the Eighth Amendment. (ECF No.

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12.) The Court dismissed all other claims and Defendants for failure to state a cognizable claim for

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relief. (Id.) The Court indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the fact

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that Plaintiff had consented to Magistrate Judge jurisdiction and no other parties had yet appeared.

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(Id.)

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not

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have jurisdiction to dismiss the claims and Defendants in its April 7, 2017 order.

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Based upon the foregoing, the undersigned will now recommend to the District Judge that this

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case continue to proceed only on Plaintiff’s cognizable claims, and that the claims and Defendants

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described below be dismissed, for the reasons explained herein.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names M. Duran, Masi, S. Hanzel, B. Chambers, J. Silva, Garza, Venegas, Figueroa,
Dela Cruz, Dr. Johal, Bridges, Aceves, Frudden, Towle, and John Does 1-10.
California State Prison-Wasco consists of several separate yards. Among the prison yards,

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yard A is infested with both drugs as well as other contraband. As a result of this infestation, fist

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fights are a very common occurrence on yard A.

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There are three categories of fist fights: (1) one-on-one fist fight is considered to be personal or

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for personal reasons and classified as “mutual combat”; (2) two-on-one fist fight is considered to be

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disciplinary action (inmate sanctioned and punishment imposed by inmates) this act is known by

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inmates as a “DP” (“Discipline”) classified by staff on paper as battery on an inmate (off the record as

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a “DP”); and (3) three-or-more-on-one this is an inmate removal from off the yard by inmates of the

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inmate assaulted. This is classified as an assault and battery on an inmate and only sometimes results

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in a referral to the district attorney for prosecution.

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It is this unwritten inmate policy that prevents both racial riots and riots amongst the inmates in

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general. Correctional staff is aware of this unwritten policy or inmate practice and acquiesce in,

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consent to, or give permission to the inmates to enforce this practice. For example, if there is a one3

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on-one or two-on-one fist fight all parties involved are placed in a holding cage in the program office

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and given a time period to cool off then they are provided with what staff call a marriage chrono to

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sign that states the issue is resolved and there will be no more fighting. The inmates are then released

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to go back to their units and placed on confine to quarters (“CTQ”) for a few days until they receive a

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rule violation hearing.

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When any of the fights occur, a Code 1 is activated in the facility and an alarm goes off with a

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red-light that is affixed to the building flashing an order by correctional officers for all inmates to get

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down or lay down on the ground. Typically, only the participants involved in the fight will remain

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standing and all other inmates will be on the ground. This allows officers to identify the individuals

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that are involved in the altercation and to prevent any other inmates from being injured by an use of

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force by officers.

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On August 31, 2014, at 1004 hours, a Code 1 was activated in facility A dining hall B-side due

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to five inmates committing a battery on one other inmate. The five inmates were striking the one

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inmate in the head and upper body with their fists. The inmate being struck had his hands over his

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face and was not fighting back. Officers activated the alarm and announced a Code 1 via the

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institutional radio as they ordered all inmates to get down. All inmates got down except for the

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inmates who continued to batter the lone inmate.

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Defendant Hanzel deployed his state issued MK9-OC-pepper spray striking the five inmates in
their faces; however, the inmates continued to strike the lone inmate with their fists.
Plaintiff was not near the fighting nor was he in the line of fire, rather, he was approximately

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20 feet or more in another direction away from all the fighting down on the ground as ordered by

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Defendants. Nonetheless, Defendants used deadly force against Plaintiff by discharging their weapon

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in Plaintiff’s direction who was away from the fighting down on the ground as ordered by Defendants.

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The projectile struck Plaintiff in his head rendering him unconscious, causing a wound on his head

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area which required six staples. Additionally, Plaintiff suffered a concussion, bleeding of the brain

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and still suffers from the injury due to nightmares of the incident and urinates on himself. Plaintiff

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also continues to suffer headaches and severe migraines

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Defendant Duran aimed her weapon at Plaintiff who was not involved in the fighting and was
down on the ground as ordered and approximately 20 feet away from the fighting.

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Defendants Masi, Hanzel, Chambers, Silva, Stegall, Arellano, Ayala, Garza, Venegas, and

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Figueroa aided and abetted with Defendant Duran in attempting to cover-up the fact that she used

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deadly force on Plaintiff and shot him in the head knowing that he was not involved in the incident.

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The Defendants reports omitted the fact that Defendant Duran shot Plaintiff in the head with her

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weapon even though he was not involved in the incident.

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Defendant Stegall’s report states that on Sunday, August 31, 2014, at approximately 1004
hours, he was covering the morning meal outside the B-side dining hall. Stegall stopped inside the

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dining hall to see if all the inmates had been seated when he saw inmates Martinez and Quintana stand

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up and yell at each other. Defendant Hanzel instructed the inmates to sit down. However, inmate

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Martinez stepped around the table and grabbed inmate Quintana around the neck, placing Quintana in

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a headlock with his right arm and began dragging Quintana away from Defendant Hanzel.

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Inmate Martinez began striking inmate Quintana in the face with his left hand. Defendants

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Stegall and Hanzel ordered the inmates to get down. Defendants Masi called a Code 1 using his hand

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held radio. Inmates Jiminez, Ruiz, Caballero and Marquez, got up from their seats and began striking

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inmate Quintana in the face and head area. Defendant Hanzel using his MK-9-OC-pepper spray from

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approximately seven feet away, sprayed each of the inmates in the facial and head area. Defendant

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Stegall went around Hanzel to provide better coverage when he heard a shot from a 40 millimeter

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firearm.

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Defendant Garza asked Stegall who was not involved in the incident and ten inmates were

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identified as not being involved. In his narrative report of the incident, Defendant Stegall stated that

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he and Garza noticed Plaintiff laying prone on the floor on the south wall by the B-2 dining door,

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covered in blood. Plaintiff informed Defendants sometime later that he was shot.

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Plaintiff witnessed Defendant Duran aim her weapon at him and discharge the firearm. Instead

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of immediately providing Plaintiff medical treatment, Defendants began to interview Plaintiff with a

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video camera in an attempt to cover-up the unlawful use of force.

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Defendant Arellano stated that on August 31, 2011, at approximately 1004 hours, he was

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assigned as coverage in “A” dining hall on the B-side. Due to the velocity of the round, he did not see

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where the round struck. He omitted from his report the fact that he witnessed Defendant Duran shot

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Plaintiff in the head even though he was not near the incident.

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In her report, Defendant Duran stated that on August 31, 2014, at approximately 1004 hours,

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when the inmates began to fight and she ordered them to get down with negative results, she

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transitioned from the Ruger Mini-14 and utilized the 40 millimeter and fired one round. Duran falsely

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alleges that she aimed the weapon at one of the five inmates attacking the lone inmate upper right

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thigh. Duran also falsely alleged that she did not see where her weapons round struck when she

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discharged the firearm. Duran omitted from her report that Plaintiff was approximately 20 feet away

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from the fighting down on the ground and suffered a head injury as a direct result of her discharging

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the weapon. Duran did not mention that anyone was injured as a result of her discharging her firearm.

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Duran showed her consciousness of guilt by claiming in her incident report that she did not

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know where her projectile struck when in fact she is skilled and trained to hit two out of three targets

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aimed at in order to qualify for use of that firearm.

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Defendants Ayala, Chambers and Venegas wrote their incident reports falsely claiming that

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they did not arrive until after everything was over and under control so they would not have to

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document that they witnessed Defendant Duran aim and shoot Plaintiff in the head.

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Defendant Hanzel, like Defendant Stegall, wrote in his incident report that while he was

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attempting to gain control of the inmates fighting he only heard the weapon fired but he did not see

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where it hit.

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Defendants Frudden and Towle at the direction and instruction of sergeant Aceves filed the

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Department of Corrections and Rehabilitations incident reports falsely alleging that the projective had

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possible struck Plaintiff in the head after it had ricocheted in an attempt to cover-up the deadly force.

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Defendants sergeant Garza and lieutenant Figueroa made sure that each of the Defendants

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wrote their incident reports where it would not directly show that Defendant Duran had intentionally

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shot Plaintiff in the head.

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After the shooting, Plaintiff was taken to the medical facility and was released within hours.

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Plaintiff was not provided a CT scan or a mandatory 24 hour evaluation even though he was rendered

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unconscious by the projectile.

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The next morning, Plaintiff woke up with a large amount of blood and vomit on his bed.

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Plaintiff was admitted to the hospital for a CT-scan and MRI on September 1, 2014. After release

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from the hospital, Plaintiff received no medical treatment from medical staff for approximately ten

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days. During the ten days, Plaintiff submitted several medical forms requesting evaluation by a

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doctor. When Plaintiff finally went to the medical department he complained of dizziness, nausea and

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vomiting; however, the Dr. Johal told Plaintiff he was lying and making a big thing out of nothing.

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The doctor did not send Plaintiff to a specialist for his injuries.

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On October 5, 2014, Plaintiff had a seizure in the dayroom of his building, and he was

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admitted to the hospital. Prior to being shot in the head, Plaintiff did not have seizures and he has no

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prior history of seizures. In March 2015, Plaintiff blacked out in the central kitchen where he worked.

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III.

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DISCUSSION

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A.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments

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Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For

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claims arising out of the use of excessive physical force, the issue is “whether force was applied in a

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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

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Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

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quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective

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component of an Eighth Amendment claim is contextual and responsive to contemporary standards of

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decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses

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of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is evident,

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Wilkins, 559 U.S. at 37-38 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002).
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Factors that can be considered are “the need for the application of force, the relationship

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between the need and the amount of force that was used, [and] the extent of injury inflicted.” Whitley

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v. Albers, 475 U.S. 312, 321 (1986). Although the extent of the injury is relevant, the inmate does not

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need to sustain serious injury. Hudson, 503 U.S. at 7; Wilkins, 559 U.S. at 37-38. The Eighth

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Amendment’s prohibition on cruel and unusual punishments necessarily excludes from constitutional

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recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10.

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Based on Plaintiff’s allegations in the amended complaint, Plaintiff states a cognizable claim

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for excessive force against Defendant Duran. However, Plaintiff does not state a cognizable claim

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against any other Defendants.

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B.

False Reports

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Plaintiff contends that Defendants Masi, Hanzel, Chambers, Silva, Stegall, Arellano, Ayala,

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Garza, Venegas, Figueroa, Frudden and Towle covered-up the use of excessive force by Defendant

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Duran by producing false reports of the incident. A “complaint alleging that an officer filed a false

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report, by itself, fails to state a claim upon which relief can be granted.” Koch v. Austin, No. 1:03-

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CV-5021-AWI-DLB, 2006 WL 403818, at *5 (E.D. Cal. Feb. 16, 2006), adopted by 2006 WL 842585

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(Mar. 28, 2006). Furthermore, preparing a false report about an incident after it occurred cannot

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subject that individual to liability for the force used during the incident. See Villegas v. Schulteis, No.

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1:09-cv-00493-YNP, 2009 WL 3157519, at *6 (E.D. Cal. Sept. 29, 2009). Accordingly, Plaintiff fails

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to state a cognizable claim against Defendants Masi, Hanzel, Chambers, Silva, Stegall, Arellano,

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Ayala, Garza, Venegas, Figueroa, Frudden and Towle.

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C.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that
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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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“A difference of opinion between a physician and the prisoner - or between medical

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professionals - concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir.

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2014); Wilhelm v. Rotman, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1986)). Rather, Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances and that the defendants chose this course in conscious disregard

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of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal

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quotation marks omitted).

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Based on Plaintiff’s allegations in the amended complaint, Plaintiff states a cognizable claim
against Defendant Dr. Johal.

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D.

Doe Defendants 1 through 10

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada

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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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In the first amended complaint, Plaintiff names Does 1 to 10 as Defendants, but fails to link

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those individuals to any affirmative act or omission giving rise to the alleged constitutional violation.

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Accordingly, Plaintiff fails to state a cognizable claim against Does 1 through 10.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed on Plaintiff’s claims against Defendant Duran for excessive force

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and against Dr. Johal for deliberate indifference to a serious medical need in violation of the Eighth

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Amendment;
2.

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All other claims and Defendants be dismissed from the action for failure to state a

cognizable claim for relief; and

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3.

The Office of the Clerk is directed to randomly assign a District Judge to this action.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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November 30, 2017
UNITED STATES MAGISTRATE JUDGE

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