Wiseman v. Doe et al

Filing 10

ORDER Finding Cognizable Claims re 1 , signed by Magistrate Judge Jennifer L. Thurston on 3/28/18. 21-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHESTER RAY WISEMAN,
Plaintiff,

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Case No. 1:17-cv-01166-AWI-JLT (PC)
ORDER FINDING COGNIZABLE CLAIMS
(Doc. 1)

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v.

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KOKOR, et al.,

21-DAY DEADLINE
Defendants.

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Plaintiff has stated cognizable claims under the Eight Amendment against two

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unidentified correctional officers who ignored his plea for help when he was suicidal and instead

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sprayed him with pepper-spray. However, this action cannot advance without information upon

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which to identify the correctional officers. Once such information is received this action may

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proceed.

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A.

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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A complaint

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will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts under a

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cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th

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Cir. 1990).

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B.

Summary of the Complaint

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Plaintiff complains of incidents that occurred on September 23, 2016 when he was

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transferred from SATF to CCI. Plaintiff names correctional officers Doe 1 and Doe 2 as the only

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defendants in this action and seeks to proceed on two claims under the Eighth Amendment for

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excessive force and deliberate indifference to obtain monetary damages and declaratory relief.1

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Plaintiff alleges that, on September 23, 2106 when he arrived at CCI, his new cellmate

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explained to Plaintiff what the other inmates were planning to do to him once he was released

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from orientation status and that was all they talked about on the bus ride from SATF to CCI.

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Plaintiff had grave safety concerns and felt suicidal.

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Because Plaintiff’s claims for damages necessarily entail a determination whether his rights were violated, his
separate request for declaratory relief is subsumed by those claims. Rhodes, 408 F.3d at 565-66 n.8. Therefore,
Plaintiff may not pursue separate declaratory relief in this action.

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After the evening meal was concluded, Plaintiff stood at the door of his cell and when Doe

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#1 arrived, Plaintiff immediately told him that Plaintiff is a CCCMS patient and that he felt

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suicidal. Doe 1 informed Plaintiff “This is CCI, its not a soft-prison, so deal with it,” and walked

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away in violation of CDCR policy that dictated Doe #1 should have handcuffed Plaintiff and

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taken him to a cell for observation to ensure he did not harm himself.

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Doe #2 came around later and “noticed that Plaintiff was hanging with a sheet tightly tied

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around his neck, inside his cell. Rather than take immediate action, Doe #2 stepped away from

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the door and returned several times to see Plaintiff still hanging by the sheet tied around his neck.

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Despite this, Doe #2 walked away and continued the institutional count. Upon completion of the

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count, Doe #2 returned to find Plaintiff still hanging with the sheet “twisted and tied tightly”

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around Plaintiff’s neck. Doe #2 was joined by Doe #1 and they opened the tray slot and sprayed

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Plaintiff with pepper-spray while yelling “Stop hanging yourself!” When they stopped spraying

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the pepper-spray, Plaintiff swiftly untied the sheet and took it from around his neck. Despite his

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compliance, Doe #1 and Doe #2 sprayed Plaintiff with pepper-spray a second time for 90 seconds

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while yelling “Stop hanging yourself!” As a result, Plaintiff suffered the immediate effects of the

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pepper-spray as well as emotional trauma from the incident and now requires three medications

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for asthma and allergies.

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For the reasons discussed below, Plaintiff states cognizable claims against both Doe

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Defendants for excessive force and deliberate indifference to his serious medical needs under the

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Eighth Amendment. However, as noted previously, Plaintiff cannot proceed on his claims

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without providing identifying information on the Doe Defendants. The U.S. Marshals Service

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must have some information with which to serve this action on the Does. Thus, Plaintiff is

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ordered to submit all information he has from which the Doe Defendants’ identities might be

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extrapolated.

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C.

Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain
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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is

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plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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D.

Plaintiff=s Eighth Amendment Claims
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Deliberate Indifference

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton

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infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,
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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants’ response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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suicidal feelings are accepted as serious medical needs.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060
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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Clearly, Doe #1 was deliberately indifferent when he told Plaintiff that CCI is not a soft

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prison, so deal with it and walked away after Plaintiff first informed him of feeling suicidal. Both

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Doe #1 and Doe #2 were also deliberately indifferent when they saw Plaintiff was hanging

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himself and sprayed him with pepper-spray. Plaintiff thus states cognizable claims for deliberate

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indifference against both Doe #1 and Doe #2.
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Excessive Force

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The Eighth Amendment prohibits those who operate our prisons from using “excessive

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physical force against inmates.” Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam); Hudson v.

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McMillian, 503 U.S. 1, 8-9 (1992); Hoptowit v. Ray, 682 F.2d 1237, 1246, 1250 (9th Cir.1982)

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(prison officials have “a duty to take reasonable steps to protect inmates from physical abuse”);

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see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir.1988), cert. denied, 490 U.S. 1012

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(1989) (“prison administrators’ indifference to brutal behavior by guards toward inmates [is]

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sufficient to state an Eighth Amendment claim”). As courts have succinctly observed, “[p]ersons

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are sent to prison as punishment, not for punishment.” Gordon v. Faber, 800 F.Supp. 797, 800

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(N.D. Iowa 1992) (citation omitted), aff=d, 973 F.2d 686 (8th Cir.1992). “Being violently

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assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses

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against society.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citation and quotation

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omitted).

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When a prison official stands accused of using excessive physical force in violation of the

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cruel and unusual punishment clause of the Eighth Amendment, the question turns on “whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically for the purpose of causing harm.” Hudson, 503 U.S. at 7 (1992) (citing Whitley v.
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Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and

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unnecessary, it is proper to consider factors such as the need for application of force, the

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

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

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Hudson, 503 U.S. at 7. The extent of a prisoner’s injury is also a factor that may suggest whether

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the use of force could plausibly have been thought necessary in a particular situation. Id.

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Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not

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determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel

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and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9.

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Clearly the second round of pepper-spray, applied by both Doe #1 and Doe #2, after

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Plaintiff had complied and removed the sheet from around his neck, constituted excessive force.

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This claim is cognizable.

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E.

Identifying Doe Defendants

Doe #1 and Doe #2 are the only Defendants in this action. Rule 4(m) of the Federal Rules
of Civil Procedure provides:

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If a defendant is not served within 120 days after the complaint is filed, the
court - on motion or on its own after notice to the plaintiff - must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the

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Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.

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Marshal for service of the summons and complaint and [he] should not be penalized by having his

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action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed

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to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations

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and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

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“So long as the prisoner has furnished the information necessary to identify the defendant, the

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marshal’s failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422

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(internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the

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Marshal with accurate and sufficient information to effect service of the summons and complaint,

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the Court’s sua sponte dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at

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Doe #1 and Doe #2 must be identified. Plaintiff shall submit copies of the inmate appeal,

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CDCR 602, which he filed and pursued on this incident -- including all levels of review. If

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Plaintiff has any records reflecting the name(s) and/or signature(s) of Doe #1 or Doe #2 he shall

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submit them as well to assist service efforts. Plaintiff may also provide information such as the

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place (and his housing unit), date, and time that he saw these Defendants, their shifts, job titles,

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duties, and all identifying attributes that he can recall about them such as their gender, hair color,

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height, weight, and the like. Plaintiff is cautioned and encouraged to submit everything he has in

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response to this order. If the Doe Defendants cannot be identified, they cannot be served which

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will result in recommendation that this action be dismissed. Fed. R.Civ. P. 4(m).

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F.

Conclusion

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The Complaint has been screened pursuant to 28 U.S.C. ' 1915A. The Court finds that it

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states a cognizable claim for relief under section 1983 against Defendants Doe #1 and Doe #2 for

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under the Eighth Amendment for deliberate indifference to Plaintiff’s serious medical needs and

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excessive force. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-15 (2002);

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Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Jackson v. Carey, 353 F.3d 750, 754 (9th

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Cir. 2003); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).

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However, this action cannot be served on unidentified defendants. Thus, Plaintiff shall submit all

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information available to him to identify the names of Defendants Doe #1 and Doe #2.

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Accordingly, the Court ORDERS:

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1.

Within 21 days of the date of service of this order, Plaintiff SHALL submit

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copies of the inmate appeal, CDCR 602 which he filed on the claims in this action including all

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levels of review and all information he has which might assist to identify Doe #1 and Doe #2.

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2.

Alternatively, if Plaintiff no longer desires to pursue this action, he may file a

notice of voluntary dismissal.
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Failure to comply with this order will result in recommendation that this action be

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dismissed without prejudice.

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IT IS SO ORDERED.
Dated:

March 28, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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