Garcia v. Garcia, et al.

Filing 12

ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain 1 Claims and Defendants signed by Magistrate Judge Barbara A. McAuliffe on 07/10/2018. Referred to Judge O'Neill; Objections to F&R due by 7/27/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCO A. GARCIA,

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Plaintiff,

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v.
RUBEN GARCIA, et al.,

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Defendants.

Case No. 1:17-cv-01313-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS

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(ECF Nos. 10, 11)

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FOURTEEN (14) DAY DEADLINE

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I.

Background
Plaintiff Marco A. Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The events in the complaint are

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alleged to have occurred while Plaintiff was housed in the Kings County Jail.

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On May 31, 2018, the Court screened Plaintiff’s complaint and found that Plaintiff stated

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a cognizable claim for excessive force in violation of the Fourteenth Amendment against

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Defendants Garcia and Bursiaga, but failed to state any other cognizable claims against any other

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defendants. The Court ordered Plaintiff to either file a first amended complaint or notify the

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Court of his willingness to proceed only on the cognizable claims. (ECF No. 10.) On June 29,

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2018, Plaintiff notified the Court of his willingness to proceed on the cognizable claims identified
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by the Court. (ECF No. 11.)

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II.

Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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

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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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III.

Allegations in Complaint

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Plaintiff is currently housed at Wasco State Prison. The events in the complaint are

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alleged to have occurred while Plaintiff was housed in the Kings County Jail. Plaintiff names the

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following defendants: (1) Officer Ruben Garcia; (2) Deputy Blake Bursiaga; (3) ISU Sergeant

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Collier; (4) Deputy Fowler; (5) Sergeant Zaid Germen; and (6) Appeals Coordinator Olivera.

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Claim I

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In Claim I, Plaintiff alleges that on April 13, 2017, he was in his cell when a raid occurred

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and he was asked to cuff up. Plaintiff’s cell door was opened and he was escorted to a hallway.
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Plaintiff was patted down and instructed to turn around. When he did, Defendant Garcia choked

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him, yelled that Plaintiff had swallowed something and pushed Plaintiff’s neck to the window.

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Plaintiff was in a daze and saw a fist coming at him, which he believed to be that of Defendant

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Bursiaga. Plaintiff was struck in the forehead. He was struck again by one of the defendants,

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spun around, pushed into the window, and then slammed on his head. Plaintiff heard Defendant

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Bursiaga yell, “Your [expletive] stupid Garcia.” (ECF No. 1 at 5.) Plaintiff asserts that this was

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all done while he was in restraints and unable to resist. He was then placed in leg irons and

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shackles and placed in holding cell for more than 5 hours.

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Plaintiff alleges that he sustained both physical and emotional injuries as a result of the

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unprovoked beating and unnecessary use of force in violation of the Eighth Amendment,

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including a lump to the back of his head, three lumps to his forehead, severe headaches, dizziness

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and blurry vision. Plaintiff further claims that charges of assault and battery were filed against

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him, but were later dropped at a preliminary hearing.

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Claim II

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In Claim II, Plaintiff alleges that he was a pretrial detainee at the time of the unprovoked

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assault. Plaintiff alleges that after the assault, Defendant Bursiaga and Garcia placed him in a

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small, dirty holding cell. Although the cell had sanitary facilities, Plaintiff was unable to properly

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use them because he was in full restraints. Plaintiff used the emergency intercom and expressed

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the need to use the facilities. Plaintiff was told that some would come and talk to him. When

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Defendant Fowler walked past the cell, Plaintiff asked Defendant if he could take the cuffs off so

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that Plaintiff could use the bathroom. Defendant Fowler looked at Plaintiff, smiled, said, “Nope,”

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and walked away. Plaintiff tried to call him back, but Defendant Fowler ignored him. Plaintiff

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then pushed the intercom again and advised that he needed to use the bathroom, but could not go

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because of the cuffs and the inability to take his jumpsuit off. Plaintiff also reported that an

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officer walked past, but did not want to help. He was told to ask the next passing officer.

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Approximately 20 minutes passed and Plaintiff felt pressure in his stomach and the need

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to use the bathroom. He pushed the intercom again, but no one answered. Plaintiff noticed

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Defendant Fowler walk past his cell. Plaintiff knocked to get his attention and asked if could take
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his cuffs off so that he could use the bathroom. Defendant Fowler told him no and walked away.

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Plaintiff tried to call to him again, but Defendant Fowler told him to shut up and it was not his

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problem. Because Plaintiff was in desperate need to use the restroom, he pulled his hand out of

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the cuff so that he could use the sanitation properly. Plaintiff’s hand was red and swollen. After a

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couple of minutes, Defendants Collier and Germen came into the holding cell. Plaintiff told them

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that his hand was swollen because he had to use the bathroom and had been asking for an hour to

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be uncuffed to use the bathroom. Defendant Germen grabbed Plaintiff, recuffed him and his

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Miranda rights were read to him by Defendant Collier. Plaintiff invoked his right to remain

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silent. Defendant Collier then left the area.

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Defendant Germen began to talk to Plaintiff and told him that he did not know whether to

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place him in Ad Seg or not. Defendant Germen asked Plaintiff what happened. Plaintiff told him

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that he guessed they were saying that Plaintiff kicked someone, but he did not. All Plaintiff

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remembered was being choked by Defendant Garcia, spun around and slammed everywhere.

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Plaintiff did not really recall anything because it happened so fast and he was choking. Defendant

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Germen said it might have happened as Plaintiff was being slammed to the ground. Plaintiff

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would be placed in segregation until Defendant German checked the video and decided what to

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do. Plaintiff asked if he could be unrestrained, but was denied.

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Intermittently throughout the day Defendant Fowler walked by and Plaintiff asked if he

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could be unrestrained in order to relieve himself and because the cuffs were on too tight, causing

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his hands to swell and turn red. Plaintiff was denied each time.

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Defendant Collier came into the holding cell to take pictures of Plaintiff’s injuries.

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Plaintiff requested to be uncuffed and asked how much longer he was to be in the holding cell.

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Defendant Collier said he could not uncuff Plaintiff and did not know how long Plaintiff was to

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be in the cell. It was at the discretion of Defendant Germen. Defendant Collier asked if Plaintiff

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would like medical attention. Plaintiff replied that he did, and Defendant Collier said he would

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be right back. Defendant Collier never returned. Plaintiff was in the cell from 7:50 to 4:30 p.m

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without being fed lunch. He was taken to the Security Housing Unit awaiting a write up and was

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not allowed to leave his cell.
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Plaintiff alleges that he was injured by Defendants’ failure to loosen the restraints around

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his wrist once he made them aware of his injuries resulting from him not being unrestrained in

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order to use the sanitation facilities. Plaintiff asserts that their inactions cause him to resort to

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drastic measures to pull his hand out of the cuffs so he could use the facilities. Plaintiff further

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alleges that Defendant Germen’ action of recuffing his swollen wrist/hand caused the deprivation

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of his rights, including denial of equal protection and deliberate indifference.

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Claim III

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On April 14, 2017, Deputy Alejo approached Plaintiff’s cell in the Security Housing Unit.

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Deputy Alejo informed Plaintiff that he had a write-up for what happened on April 13, 2017. He

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also informed Plaintiff that he was not a hearing officer, that he was only there to serve him with

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the write-up, and that there was no disciplinary hearing, but Plaintiff could appeal. Plaintiff

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informed Deputy Alejo that he wished to appeal because he never assaulted anyone. Deputy

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Alejo told Plaintiff that he was not the one he needed to talk to and explained to him about

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waiving the 24-hour waiting period, which would give him 24 hours to prepare a defense.

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Plaintiff did not understand and asked if he waived it whether he would be seen the following

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day. Defendant Alejo said it did and Plaintiff signed off on the write-up. He was not supplied

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with a copy for his records. Defendant Alejo said he would receive a copy during mail call.

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Later that day, Defendant Olivera came to Plaintiff’s cell door, laughed at him and asked

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him what he did. Plaintiff relayed that he did not do anything and the cops choked him and beat

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him. Defendant Olivera said he was there for the appeal, but was going to take 30 days from

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Plaintiff because his higher ups told him to do so. Plaintiff asked if he could keep his visits, but

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Defendant Olvera laughed and said no. Plaintiff then told Defendant Olivera that the write-up

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said he assaulted staff, but he did not. Plaintiff explained what happened, and said that he never

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slapped anyone’s hand or kicked anyone, and did not know why they would say that. Defendant

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Olivera said that he did not know either, but that he would have to go with the higher ups on this

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one. Plaintiff asked if Defendant Olivera could show him the video and point out where and

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when he did it. Defendant Olivera told Plaintiff that he could not show him the video, but he was

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going to look at it to see if Plaintiff was telling the truth. He also said it was not going to change
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anything. Defendant Olivera then left Plaintiff’s cell. Plaintiff received a copy of the write-up

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after he left. Plaintiff filed a grievance on this and other issues, but nothing was ever done.

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Plaintiff asserts that he was deprived of his liberty, confined in a small cell without the

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ability to exercise, watch television, associate with other prisoners, attend outdoor recreation in a

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setting with the ability to engage in sports and other group recreational activities, have visits or

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use the phone. Plaintiff asserts that he was denied exercise for a period of thirty days in violation

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of his due process rights.

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As relief, Plaintiff seeks compensatory and punitive damages, along with expungement of
the disciplinary conviction from his record.
IV.

Discussion

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A.

Excessive Force

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In Claim I, Plaintiff alleges excessive force in violation of the Eighth Amendment against

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Defendants Garcia and Bursiaga. However, the Due Process Clause of the Fourteenth

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Amendment, not the Eighth Amendment, protects a pretrial detainee from the use of excessive

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force that amounts to punishment. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). To

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state an excessive force claim under the Fourteenth Amendment, “a pretrial detainee must show

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only that the force purposely or knowingly used against him was objectively unreasonable.” Id.

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At the pleading stage, Plaintiff has stated a cognizable excessive force claim in violation

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of the Fourteenth Amendment against Defendants Garcia and Bursiaga.
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Conditions of Confinement
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Toilet Access

In order to proceed on a claim for denial of restroom access in violation of the Fourteenth
Amendment, a prisoner must plead as follows:
(1) the defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined; (2) those conditions put the plaintiff at
substantial risk of suffering serious harm; (3) the defendant did not take
reasonable available measures to abate that risk, even though a reasonable officer
in the circumstances would have appreciated the high degree of risk involved—
making the consequences of the defendant’s conduct obvious; and (4) by not
taking such measures, the defendant caused the plaintiff’s injuries.
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Castro v. Cty. of Los Angeles, 833 F.3d at 1071. With respect to the third element, the

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defendant’s conduct must be “objectively unreasonable.” Id. (citing Kingsley, 135 S. Ct. at

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2473). This is a standard that is something “more than negligence but less than subjective

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intent—something akin to reckless disregard.” Castro, 833 F.3d at 1071.

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Courts in this and other districts have held that a temporary delay in allowing a prisoner to

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use a restroom fall short of establishing an Eighth Amendment claim. See, e.g., von

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Koenigsberg-Tyrvaldssen v. Kohut, 2017 WL 1277457, at *9–10 (D. Mont. Jan. 20, 2017)

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(isolated incidents of not having immediate access to a bathroom were insufficient to state a

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federal constitutional claim; providing summary of similar cases); Samu v. Stewart, 2011 WL

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4074781, at *2 (W.D. Mich. Sept. 13, 2011) (finding isolated and temporary refusal or delay in

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allowing a prisoner to use the bathroom did not support an Eighth Amendment claim); see also

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Hartsfield v. Vidor, 199 F.3d 305, 309–10 (6th Cir. 1999) (allegations that prisoner was denied

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use of a toilet for two separate 8-hour periods over two days did not state a claim for violation of

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the Eighth Amendment); Gerst v. Arpaio, 2012 WL 3228838, at *4 (D. Ariz., Aug. 6, 2012)

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(“[a]s to Plaintiff’s claim that he was deprived of air conditioning, water, and the use of a

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bathroom for three hours, he has alleged a temporary inconvenience, not a “sufficiently serious”

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deprivation”); Saenz v. Reeves, 2012 WL 4049975, at *14 (E.D. Cal., Sept.13, 2012) (“denying

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Plaintiff access to a toilet and water for five and one half hours on one occasion and four and one

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half hours on a separate occasion, while he was kept in a holding cell, are not sufficient to rise to

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the level of a sufficiently serious deprivation to violate the Eighth Amendment”). While these

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cases were decided under the Eighth Amendment, they inform the Court’s analysis under the

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Fourteenth Amendment.

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Here, Plaintiff’s allegations that he was denied the use of a restroom for an hour while in

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the holding cell before he relieved himself are insufficient to state a claim upon which relief may

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granted. Plaintiff does not allege that the one-hour delay placed him in substantial risk of

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suffering serious harm or actually caused him injury, other than the self-inflicted injury when

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removing his wrist from the cuff. Further, Plaintiff’s suggestion that he was in the holding cell

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for approximately 8½ hours without restroom access or food is insufficient to state a claim.
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Plaintiff has not adequately alleged that any of the defendants made an intentional decision or that

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a reasonable officer in the circumstances would have appreciated any risk, much less a high

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degree risk, from a temporary deprivation of toilet access.

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2.

Lack of Exercise

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In Claim III, Plaintiff asserts that his placement following the disciplinary write up

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resulted in a loss of exercise. The Court construes this as an assertion that he was denied outdoor

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exercise. “[T]he Fourteenth Amendment requires that pre-trial detainees not be denied adequate

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opportunities for exercise without legitimate governmental objective.” Pierce v. Cty. of Orange,

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526 F.3d 1190, 1211–12 (9th Cir. 2008). “Determining what constitutes adequate exercise

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requires consideration of the physical characteristics of the cell and jail and the average length of

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stay of the inmates.” Id.
Plaintiff’s allegations are insufficient to support a claim regarding the denial of outdoor

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exercise. The Court cannot ascertain from the facts alleged where Plaintiff was housed and

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whether he was denied all exercise, denied outdoor exercise and/or denied only outdoor access.

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Further, there is no indication that Plaintiff suffered any negative medical effects from the

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purported denial of outdoor exercise.

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C.

Denial of Medical Care

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Plaintiff alleges that Defendant Germen’s action of recuffing his swollen wrist/hand

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caused the deprivation of his rights, including denial of equal protection and deliberate

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indifference. Plaintiff also alleges that Defendant Collier failed to summon medical.

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Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). An equal protection claim

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may be established by demonstrating that the defendant intentionally discriminated against the

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plaintiff on the basis of the plaintiff’s membership in a protected class, such as race. See, e.g.,

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Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); Thornton v. City of St. Helens,

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425 F.3d 1158, 1167 (9th Cir. 2005).

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Where no suspect class or fundamental right is implicated, a plaintiff’s equal protection

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claims are subject to a rational basis review. See Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Nelson v. City of

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Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998) (“Unless a classification trammels fundamental

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personal rights or implicates a suspect classification, to meet constitutional challenge the law in

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question needs only some rational relation to a legitimate state interest.”). In the prison context,

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the right to equal protection is viewed through a standard of reasonableness; that is, whether the

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actions of prison officials are “reasonably related to legitimate penological interests.” Walker v.

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Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

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Plaintiff has failed to establish that he is a member of a protected class or that he was

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otherwise discriminated against by Defendant Germen. Plaintiff’s conclusory allegations that his

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Equal Protection rights have been violated by the denial of care for his wrist are not sufficient to

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state a cognizable claim.

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2.

Deliberate Indifference

“[C]laims for violations of the right to adequate medical care ‘brought by pretrial

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detainees against individual defendants under the Fourteenth Amendment’ must be evaluated

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under an objective deliberate indifference standard. Gordon v. Cty. of Orange, 888 F.3d 1118,

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1124–25 (9th Cir. 2018), quoting Castro, 833 F.3d at 1070. “[T]he elements of a pretrial

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detainee’s medical care claim against an individual defendant under the due process clause of the

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Fourteenth Amendment are:

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(i)

the defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined; (ii) those conditions put the
plaintiff at substantial risk of suffering serious harm; (iii) the defendant
did not take reasonable available measures to abate that risk, even though
a reasonable official in the circumstances would have appreciated the high
degree of risk involved—making the consequences of the defendant's
conduct obvious; and (iv) by not taking such measures, the defendant
caused the plaintiff's injuries.

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Id. at 1125. As noted above in the conditions of confinement claim, with respect to the third

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element, the defendant’s conduct must be objectively unreasonable. Id. However, the mere lack

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of due care does not deprive an individual of life, liberty or property under the Fourteenth and,
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thus, the plaintiff must “prove more than negligence but less than subjective intent—something

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akin to reckless disregard.” Id. (citation and internal quotation omitted).
Plaintiff’s allegations are not sufficient to state a claim for a violation of the right to

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adequate medical care. At a minimum, Plaintiff does not indicate that he suffered any injuries at

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the hands of Defendant Germen by the recuffing of his wrist or even that there was a high degree

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of risk involved in the recuffing or the purported failure of either Defendant German or Collier to

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secure medical attention. Plaintiff merely asserts that he experienced swelling and redness in his

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hand, which he admits occurred after he removed his own wrist from the cuff.

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D.

Administrative Segregation

A pretrial detainee “may not be punished without a due process hearing.” Mitchell v.

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Dupnik, 75 F.3d 517, 524 (9th Cir. 1996). “[P]retrial detainees may be subjected to disciplinary

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segregation only with a due process hearing to determine whether they have in fact violated any

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rule.” Id. Although Plaintiff suggests that he was denied a hearing, it is unclear from the facts

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alleged in the complaint whether Plaintiff was placed in disciplinary segregation or whether he

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may have waived any right to a hearing. Plaintiff’s allegations are, at best, vague regarding his

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placement, the disciplinary write-up and related events surrounding that write-up. Further,

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Plaintiff’s conclusory allegations that he generally suffered a number of indignities based on his

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housing assignment are not sufficient to support a due process claim.

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V.

Conclusion and Recommendation

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Plaintiff’s complaint states a cognizable claim for excessive force in violation of the

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Fourteenth Amendment against Defendants Garcia and Bursiaga, but fails to state any other

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cognizable claims.

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Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a
District Judge to this action.
Furthermore, it is HEREBY RECOMMENDED that:
1. This action proceed on Plaintiff’s complaint, filed October 2, 2017, (ECF No. 1), for

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excessive force in violation of the Fourteenth Amendment against Defendants Garcia and

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Bursiaga; and
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2. All other claims and Defendants be dismissed based on Plaintiff’s failure to state claims
upon which relief may be granted.

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

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Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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

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and Recommendations.” Plaintiff is advised that the failure to file objections within the specified

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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 10, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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