Sims v. Hedrick et al

Filing 50

ORDER RE. POTENTIAL EXCESSIVE FORCE CLAIM. Signed by Magistrate Judge Laurel Beeler on 1/9/2017. (ahm, COURT STAFF) (Filed on 1/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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JAMES MARION SIMS,

Case No. 15-cv-03003-LB

Plaintiff,
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v.

ORDER RE. POTENTIAL EXCESSIVE
FORCE CLAIM

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TOMASIAN, et al.,
Defendants.

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In his complaint and amended complaint, James Sims asserted a claim for deliberate

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indifference to his medical needs. He also summarily mentioned in both documents that his need

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for medical care existed because he had been injured by correctional officer (“C/O”) Collier. (ECF

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No. 1. at 3; ECF No. 9 at 3.) Although mentioning that he had been injured by C/O Collier, both

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the complaint and amended complaint plainly focused on the alleged denial of medical care.

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Magistrate Judge Grewal (to whom the action was then assigned) determined that the amended

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complaint stated a cognizable claim against C/O Collier and sergeant Tomasian for deliberate

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indifference to Mr. Sims’ medical needs based on their denial of medical care for him, but made

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no mention of a potential excessive force claim. (ECF No. 10.) Service of process was ordered on

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C/O Collier and sergeant Tomasian.

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The defendants have moved for summary judgment on the claim for deliberate indifference to

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medical needs. In his opposition to that motion, Mr. Sims elaborates on the use of force, and

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states: C/O Collier “pushed me up against the wall and assulted me by squeezing my genitals and

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throw me back down on the shower floor while I was hancuffed behind my back and caused injury

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to my right shoulder.” (ECF No. 48 at 3 (errors in source).)

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It is unclear to the court whether Mr. Sims wants to present to the court a claim for excessive

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force. Although a plaintiff is the master of his pleadings and this plaintiff’s pleadings suggest that

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he was most concerned about the denial of medical care, the court must liberally construe

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pleadings from pro se plaintiffs. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document
filed pro se ‘is to be liberally construed,’ . . . and ‘a pro se complaint, however inartfully pleaded,

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United States District Court
Northern District of California

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must be held to less stringent standards than formal pleadings drafted by lawyers.’”) The amended

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complaint at least hints at the existence of a possible claim for excessive force claim and the

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description in the opposition to the motion for summary judgment suggests such a claim could be

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pled. See generally Hudson v. McMillian, 503 U.S. 1, 6 (1992) (whenever prison officials stand

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accused of using excessive physical force in violation of the Eighth Amendment, the core judicial

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inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm). Therefore, out of an abundance of caution, the court

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will provide Mr. Sims an opportunity to try to plead such a claim.

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If Mr. Sims wishes to allege an excessive force claim against C/O Collier, he must file and

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serve on defense counsel an amendment to his amended complaint no later than February 13,

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2017. If Mr. Sims does not file an amendment by that deadline, the court will proceed on the basis

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that Mr. Sims chose not to assert an excessive force claim. The court is directing Mr. Sims to file

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an amendment to his amended complaint rather than a second amended complaint, so that he will

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only need to allege a claim for excessive force and will not need to repeat the claim for deliberate

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indifference to medical care. An amendment is read together with the amended complaint,

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whereas a second amended complaint would supersede the amended complaint. Plaintiff is

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cautioned that administrative remedies for any excessive force claim must have been exhausted

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before he filed this action. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to
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prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

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any jail, prison, or other correctional facility until such administrative remedies as are available are

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exhausted.”)

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After this pleading issue is resolved, the court will address the pending motion for summary
judgment.
IT IS SO ORDERED.
Dated: January 9, 2017
______________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES MARION SIMS,

Case No. 15-cv-03003-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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TOMASIAN, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on January 9, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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James Marion Sims ID: H90920
Corcoran State Prison 4A Left-56
PO Box 3476
Corcoran, CA 93212

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Dated: January 9, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable LAUREL BEELER
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