Dillingham v. Garcia
| Decision Date | 13 March 2021 |
| Docket Number | 1:19-cv-00461-AWI-GSA-PC |
| Parties | JERRY DILLINGHAM, Plaintiff, v. J. GARCIA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Jerry Dillingham ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2019, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On June 1, 2020, the court issued a screening order requiring Plaintiff to either (1) file an amended complaint not exceeding 25 pages, or (2) notify the court of his willingness to proceed only with the excessive force claim against defendant J. Garcia and the medical claims against defendants Harmon and Dozer found cognizable by the court. (ECF No. 19.) On August 27, 2020, Plaintiff filed the First Amended Complaint, which was 41 pages in length. (ECF No. 31.) On August 30, 2020, the court issued an order striking the First Amended Complaint for Plaintiff's failure to comply with the screening order and granted Plaintiff 30 days in which to file a Second Amended Complaint not exceeding 25 pages. (ECF No. 32.) On September 8, 2020, Plaintiff filed the Second Amended Complaint. (ECF No. 34.) On February 10, 2021, the court issued findings and recommendations, recommending that this case proceed only against defendant J. Garcia for excessive force and failure to protect Plaintiff. (ECF No. 43.)
The court has found in this amended findings and recommendations that Plaintiff also states a claim in the Second Amended Complaint against defendant J. Garcia for conspiracy. Accordingly, the court now issues amended findings and recommendations. 28 U.S.C. § 1915A.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue in the Second Amended Complaint allegedly occurred. Plaintiff names as defendants Correctional Officer (C/O) J. Garcia, C/O J. Harmon, C/O D. Dozer, Sergeant B. Stane, Lieutenant A. Sotelo, Warden C. Pfeiffer, C/O F. Garcia (father of C/O J. Garcia), S. Kernan (CDCR Secretary), R. Soto (inmate), and Ralph Diaz (CDCR Secretary) (collectively, "Defendants").
Plaintiff's allegations follow:
Plaintiff is a mentally impaired ADA inmate. On June 7, 2018, Plaintiff was a new arrival at KVSP and was assigned housing in Facility C Building C4-C-Sec, where dangerous Security Threat Groups (STG) - Radical white, Mexican, and Negro gang members -- are housed. This is the most violent yard in the most dangerous prison in California.
On June 8, 2018, two convicts came to Plaintiff's cell stating, "We are STG gang members." (ECF No. 34 at 3:15.)1 They were Negroes and told Plaintiff there is a convict in our C-section, R. Soto, who is going around telling other gang members that Plaintiff is in prison for a sensitive commitment offense, and Soto was carrying out an agreement with defendant F. Garcia to cause Plaintiff's murder. The two convicts said that Soto was telling gang members that he and Plaintiff were both at the California Substance Abuse Treatment Facility (SATF) in Corcoran, California, in 2016-2017, and an officer, F. Garcia, gave Soto and other convicts Plaintiff's private information CDCR 128-G, which recorded Plaintiff's sensitive commitmentoffense. One of the two gang members said they would murder and rape Plaintiff if he did not show them his CDCR 128-G Classification Chrono when he came out of the cell. The gang member said that prison guards are going to watch because the officers know it's going down because Officer J. Harmon is telling Building 4 convicts about Plaintiff's sensitive offense. Plaintiff was terrified because F. Garcia gave his co-conspirator the weapon to cause Plaintiff's murder between February 28, 2017 and March 3, 2017. F. Garcia was alerted to Plaintiff's "SCO" offense [sex offender], which gives Plaintiff an increased risk of being targeted for murder by prison guards and convicts. Gang members came to Plaintiff's cell and threatened to murder Plaintiff because of his sensitive commitment offense.
On June 12, 2018, defendant Harmon and the control officer informed Plaintiff he was paged for a medical appointment. Around 9:40am, the booth officer opened Plaintiff's cell door for the appointment. Plaintiff was informed that morning by Harmon, prior to inmates being released for medication pill line, that there could not be any Facility C inmate recreation yard program after Building C4 inmates returned from walking to pill line, i.e., no inmate movement out of their cells. So Plaintiff felt he could leave his cell and receive protection.
Plaintiff reported to defendant Harmon in his red paper orientation jumpsuit, lime green mobility impaired disability vest, and mobility aid cane. Plaintiff asked why it took so long to get out of the cell for this medical appointment. Harmon replied, "You will find out soon enough." (ECF No. 34 at 10:18-19.) Plaintiff alerted defendant Harmon about his safety concerns because of the threats. Plaintiff asked Harmon to protect him by placing waist chain handcuffs on Plaintiff and providing a safety escort out of the building, through the yard, and to Sgt. Stane's program administration building for placement in a secure holding cage. Defendant was to call Sgt. Stane ahead of time to clear the yard of all inmates before Harmon escorted Plaintiff to the Program Office. But defendant Harmon said he wasn't escorting Plaintiff in handcuffs anywhere. He told Plaintiff to find a safe way to the medical building on his own and to "get out my office." (ECF No. 34 at 11:8.) Plaintiff felt that that he, a Negro, was being treated differently than others similarly situated, that is, non-classified (white, Mexican) sensitive commitment offender gang members.
Upon exiting Building C-4, Plaintiff was excluded from participation in security protection services. Plaintiff saw defendant J. Garcia escorting ten or more unhandcuffed radical extremist STG gang members of different races, returning from allegedly "C-over-C"2 punitive solitary recreation. Defendant J. Garcia beckoned to an unhandcuffed "C-over-C" STG gang member, defendant Soto. Defendant J. Garcia stood by and watched sadistically as he and Soto identified Plaintiff. Plaintiff heard J. Garcia and Soto express agreement that Plaintiff is the inmate for whom J. Garcia solicited Soto to conspire to murder Plaintiff and intimidate a witness in furtherance with an agreement with F. Garcia. Plaintiff heard J. Garcia direct his co-conspirator Soto to attack Plaintiff, a 57-year old disabled dependent painfully hobbling through the recreation yard trying to reach safety at the Program Office a hundred or more yards away before defendant Soto could reach him. Soto struck Plaintiff from behind. Plaintiff heard Soto during the attack exclaim, "This is from F. Garcia his family J. Garcia, i.e. son/brother for Plaintiff being an informant, snitch, sensitive commitment offense offender." (ECF No. 34 at 12:7-9.)
Soto severed Plaintiff's right bicep tendon causing excruciating pain from fist blows down on Plaintiff's right arm, his bicep seemingly rendered paralyzed. Soto bludgeoned Plaintiff across the back of the neck severely injuring C3-C7 cervical discs and crushing down on Plaintiff's spinal cord column causing severe pain, affecting Plaintiff's daily mobility. Plaintiff suffered three severe tears on his right shoulder, causing severe pain. J. Garcia caused Soto to reinjure Plaintiff's right hip, causing severe pain. All Plaintiff could do was hold on to his cane to prevent Soto from snatching it out of Plaintiff's left hand, as Soto exclaimed, "Let go of the cane, Ni**er, so I can beat you to death with it." (ECF No. 34 at...
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