Germany v. Coelho, et al.

Filing 34

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Stanley A. Boone on 11/29/2017. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKIE L. GERMANY, 12 13 14 Plaintiff, v. M. COELHO, et al., 15 Defendants. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00005-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS [ECF Nos. 12, 16] Plaintiff Frankie L. Germany is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge jurisdiction on March 21, 2017. (ECF 20 No. 7.) To date, Defendants have not consented or declined to United State Magistrate Judge 21 jurisdiction. 22 On July 12, 2017, the Court found that Plaintiff’s first amended complaint stated a cognizable 23 claim for excessive force against Defendants M Coelho, Garcia-Fernandez, P. Ward and Hanson. 24 (ECF No. 16.) The Court dismissed all other claims and Defendants from the action for failure to state 25 a cognizable claim for relief. (Id.) The Court indicated that jurisdiction existed under 28 U.S.C. § 26 636(c) based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction and no other 27 parties had yet appeared. (Id.) 28 1 1 On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1) 2 requires the consent of all named plaintiffs and defendants, even those not served with process, before 3 jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __, 4 Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not 5 have jurisdiction to dismiss the claims and Defendants in its July 12, 2017 order. 6 Based upon the foregoing, the undersigned will now recommend to the District Judge that this 7 case continue to proceed only on Plaintiff’s cognizable claims, and that the claims and Defendants 8 described below be dismissed, for the reasons explained herein. 9 I. 10 SCREENING REQUIREMENT 11 The Court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 13 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 14 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 15 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 16 A complaint must contain “a short and plain statement of the claim showing that the pleader is 17 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 19 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 21 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 22 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 23 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 24 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 25 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 26 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 27 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 28 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 2 1 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 2 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 3 U.S. at 678; Moss, 572 F.3d at 969. 4 II. 5 COMPLAINT ALLEGATIONS 6 Plaintiff claims his Eighth Amendment rights were violated when prison official used 7 excessive force against him and acted with deliberate indifference to his safety. On December 5, 8 2016, while detained in North Kern State Prison, (“North Kern”) Plaintiff claims three correctional 9 officers and one sergeant used excessive force causing injuries to Plaintiff. Throughout the day and on 10 a couple of instances, Plaintiff spoke with Officer Coelho and requested a cell move. Plaintiff reasons 11 that his request for a cell move was warranted as Plaintiff sustained a broken arm by falling off the top 12 bunk. Upon denying Plaintiff’s request, Plaintiff then asked to speak with a sergeant, to which Officer 13 Coelho replied, “hell no.” As such, Officer Coelho denied both requests. Later, during meal time in 14 the dayroom, Plaintiff asked Officer Coelho if he could speak with a sergeant, where Officer Coelho 15 began to pepper spray Plaintiff without provocation. Immediately after, Officer Coelho and his co- 16 workers then proceeded to kick and punch Plaintiff while he was on the ground. Defendants picked 17 Plaintiff up off the ground and proceeded in handcuffing him. While being escorted out of the 18 building, Plaintiff was body slammed to the ground and was beat again. Defendant proceeded to pick 19 Plaintiff up off the ground and continued to escort Plaintiff to the program office where he was placed 20 in a cell. 21 incident, Officer P. Ward, Officer Garcia-Fernandez, and Sergeant Hanson. Plaintiff named the following Defendants and claims they were also involved in this 22 Plaintiff further claims, while detained at the program office he was treated with deliberate 23 indifference by being denied medical care by nurse Negre. Nurse Negre was on duty at the D yard 24 facility and did not properly treated Plaintiff’s injuries, which consisted of: bleeding, bruises, 25 scratches, and a previous injury of a broken arm. Nurse Negre looked at Plaintiff and said, “he was 26 not hurt too bad”, and proceeded to walk away. 27 28 Plaintiff is requesting a trial and monetary damages. III. 3 DISCUSSION 1 2 A. Excessive Force 3 The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments 4 Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For 5 claims arising out of the use of excessive physical force, the issue is “whether force was applied in a 6 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 7 Wilkins v. Gaddy, 559 U.S. 34, 37 (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation 8 marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective component 9 of an Eighth Amendment claim is contextual and responsive to contemporary standards of decency, 10 Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses of force 11 do not violate the Constitution, the malicious and sadistic use of force to cause harm always violates 12 contemporary standards of decency, regardless of whether or not significant injury is evident, Wilkins, 13 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 14 F.3d 623, 628 (9th Cir. 2002). In determining whether the use of force was wanton and unnecessary, 15 courts may evaluate the extent of the prisoner’s injury, the need for application of force, the 16 relationship between that need and the amount of force used, the threat reasonably perceived by the 17 responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 18 U.S. at 7 (quotation marks and citations omitted). 19 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 20 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 21 Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with 22 food, clothing, shelter, sanitation, medical care, and personal safety. 23 In the amended complaint, the Court finds that Plaintiff has alleged sufficient facts to state a 24 plausible claim for excessive force against Defendants Coelho, Garcia-Fernandez, Ward, and Hanson. 25 Plaintiff maintains the injuries he sustained were wholly and without provocation. Plaintiff contends 26 that he requested a cell move which was denied, and when he requested to speak to a sergeant, 27 Defendant Coelho began to pepper spray Plaintiff, and then Defendants Coelho, Garcia-Fernandez, 28 Ward and Hanson punched and kicked him. Then, after Plaintiff was handcuffed, Defendants body 4 1 slammed him to the ground. Plaintiff’s allegations are sufficient to state a cognizable claim for 2 excessive force. 3 B. 4 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 5 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 6 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled 7 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm, 680 8 F.3d at 1122; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious 9 medical need by demonstrating that failure to treat [his] condition could result in further significant 10 injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the 11 need was deliberately indifferent.” 12 Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or 13 possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing 14 Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails 15 more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); 16 Wilhelm, 680 F.3d at 1122. Deliberate Indifference to Serious Medical Need Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). 17 Plaintiff’s allegations in the first amended complaint fail to give rise to a constitutional 18 violation under the Eighth Amendment. First, Plaintiff fails to demonstrate that he was suffering from 19 a serious medical need. Hudson, 503 U.S. at 9. Plaintiff only alleges he has “injuries” to his body, 20 consisting of: bleeding, bruises, scratches, and a previous injury of a broken arm. Subsequently, 21 Plaintiff does not mention any discomfort, pain, or how these injuries would result in further 22 significant injuries. Wilhelm, 680 F.3d at 1122. Such conclusory and vague allegations fail to meet 23 the objective prong for an Eighth Amendment violation. Second, Plaintiff fails to state how nurse 24 Negre’s assessment demonstrates a failure to treat his injuries. By Plaintiff’s own admission, Negre 25 assessed the situation and determined the injuries Plaintiff sustained were not serious. An inmate has 26 a right to medical care, but in this instance, there are insufficient factual details to support a reasonable 27 inference that Negre knew of and disregarded an excessive risk to serious medical needs. 28 5 Accordingly, Plaintiff fails to state a cognizable claim for deliberate indifference to a serious 1 2 medical need. 3 IV. 4 RECOMMENDATIONS 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. 7 Fernandez, P. Ward and Hanson for excessive force; and 2. 8 9 For screening purposes only, this action proceed against Defendants M Coelho, Garcia- All other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief. These Findings and Recommendations will be submitted to the United States District Judge 10 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 12 after being served with these Findings and Recommendations, the parties may file written objections 13 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendations.” The parties are advised that failure to file objections within the specified time 15 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 16 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 Dated: 20 November 29, 2017 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 6

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