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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANKIE L. GERMANY,

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Plaintiff,
v.
M. COELHO, et al.,

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Defendants.

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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

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No. 7.) To date, Defendants have not consented or declined to United State Magistrate Judge

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jurisdiction.

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On July 12, 2017, the Court found that Plaintiff’s first amended complaint stated a cognizable

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claim for excessive force against Defendants M Coelho, Garcia-Fernandez, P. Ward and Hanson.

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(ECF No. 16.) The Court dismissed all other claims and Defendants from the action for failure to state

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a cognizable claim for relief. (Id.) The Court indicated that jurisdiction existed under 28 U.S.C. §

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636(c) based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction and no other

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parties had yet appeared. (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 July 12, 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 claims his Eighth Amendment rights were violated when prison official used

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excessive force against him and acted with deliberate indifference to his safety. On December 5,

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2016, while detained in North Kern State Prison, (“North Kern”) Plaintiff claims three correctional

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officers and one sergeant used excessive force causing injuries to Plaintiff. Throughout the day and on

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a couple of instances, Plaintiff spoke with Officer Coelho and requested a cell move. Plaintiff reasons

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that his request for a cell move was warranted as Plaintiff sustained a broken arm by falling off the top

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bunk. Upon denying Plaintiff’s request, Plaintiff then asked to speak with a sergeant, to which Officer

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Coelho replied, “hell no.” As such, Officer Coelho denied both requests. Later, during meal time in

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the dayroom, Plaintiff asked Officer Coelho if he could speak with a sergeant, where Officer Coelho

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began to pepper spray Plaintiff without provocation. Immediately after, Officer Coelho and his co-

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workers then proceeded to kick and punch Plaintiff while he was on the ground. Defendants picked

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Plaintiff up off the ground and proceeded in handcuffing him. While being escorted out of the

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building, Plaintiff was body slammed to the ground and was beat again. Defendant proceeded to pick

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Plaintiff up off the ground and continued to escort Plaintiff to the program office where he was placed

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in a cell.

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incident, Officer P. Ward, Officer Garcia-Fernandez, and Sergeant Hanson.

Plaintiff named the following Defendants and claims they were also involved in this

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Plaintiff further claims, while detained at the program office he was treated with deliberate

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indifference by being denied medical care by nurse Negre. Nurse Negre was on duty at the D yard

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facility and did not properly treated Plaintiff’s injuries, which consisted of: bleeding, bruises,

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scratches, and a previous injury of a broken arm. Nurse Negre looked at Plaintiff and said, “he was

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not hurt too bad”, and proceeded to walk away.

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Plaintiff is requesting a trial and monetary damages.
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 (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation

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

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

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

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

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

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559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289

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F.3d 623, 628 (9th Cir. 2002). In determining whether the use of force was wanton and unnecessary,

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courts may evaluate the extent of the prisoner’s injury, the need for application of force, the

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relationship between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503

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U.S. at 7 (quotation marks and citations omitted).

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with

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food, clothing, shelter, sanitation, medical care, and personal safety.

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In the amended complaint, the Court finds that Plaintiff has alleged sufficient facts to state a

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plausible claim for excessive force against Defendants Coelho, Garcia-Fernandez, Ward, and Hanson.

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Plaintiff maintains the injuries he sustained were wholly and without provocation. Plaintiff contends

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that he requested a cell move which was denied, and when he requested to speak to a sergeant,

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Defendant Coelho began to pepper spray Plaintiff, and then Defendants Coelho, Garcia-Fernandez,

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Ward and Hanson punched and kicked him. Then, after Plaintiff was handcuffed, Defendants body
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slammed him to the ground. Plaintiff’s allegations are sufficient to state a cognizable claim for

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excessive force.

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B.

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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, 680

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F.3d at 1122; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious

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medical need by demonstrating that failure to treat [his] condition could result in further significant

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injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the

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need was deliberately indifferent.”

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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or

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possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails

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more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted);

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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).

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Plaintiff’s allegations in the first amended complaint fail to give rise to a constitutional

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violation under the Eighth Amendment. First, Plaintiff fails to demonstrate that he was suffering from

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a serious medical need. Hudson, 503 U.S. at 9. Plaintiff only alleges he has “injuries” to his body,

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consisting of: bleeding, bruises, scratches, and a previous injury of a broken arm. Subsequently,

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Plaintiff does not mention any discomfort, pain, or how these injuries would result in further

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significant injuries. Wilhelm, 680 F.3d at 1122. Such conclusory and vague allegations fail to meet

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the objective prong for an Eighth Amendment violation. Second, Plaintiff fails to state how nurse

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Negre’s assessment demonstrates a failure to treat his injuries. By Plaintiff’s own admission, Negre

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assessed the situation and determined the injuries Plaintiff sustained were not serious. An inmate has

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a right to medical care, but in this instance, there are insufficient factual details to support a reasonable

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inference that Negre knew of and disregarded an excessive risk to serious medical needs.

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Accordingly, Plaintiff fails to state a cognizable claim for deliberate indifference to a serious

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medical need.

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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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1.

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Fernandez, P. Ward and Hanson for excessive force; and
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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

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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 29, 2017
UNITED STATES MAGISTRATE JUDGE

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