Dillingham v. Garcia
| Decision Date | 30 May 2020 |
| 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 |
ORDER FOR PLAINTIFF TO EITHER:
(1) FILE AMENDED COMPLAINT NOT EXCEEDING 25 PAGES INCLUDING EXHIBITS
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, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 1.)
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 Complaint allegedly occurred. Plaintiff names as defendants Correctional Officer (C/O) J. Garcia, C/O J. Harmon, C/O D. Dozer, Sergeant Stane, Lieutenant A. Sotelo, Warden C. Pfeiffer, S. Kernan (CDCR Secretary), R. Soto (inmate), K. Brown (psychologist), and S. Chaiken (Head psychologist) (collectively, "Defendants").
Plaintiff's allegations follow1:
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 Negro2 gang members are housed. This is the most violent yard in the most dangerous prison in California.
On June 9, 2018, two convicts came to Plaintiff's cell stating, "We are STG gang members." (Complaint, ECF No. 1 at 8 ¶ 2.)3 They were Negroes. These unidentified inmates threatened to murder, rape, and attack Plaintiff when he came out of the cell if he didn't have his incarceration crime paperwork to show them. They further stated, "There's a convict in our C-section that is going around telling other STG gang members that while he and you were at the California Substance Abuse Treatment Facility in Corcoran, California, in 2016-2017, correctional guards were sharing with other convicts your incarceration crimes paperwork and the guard showed him what you're in prison for." (Id. at 9 ¶ 4.) They also stated, "While we are killing, raping, beating you, KVSP guards are going to watch, because they know it's going down." (Id. at ¶ 5.) They said the guards in this building -- meaning defendant Harmon -- were also telling Bldg. C4 convicts about Plaintiff's incarceration conviction. Plaintiff was terrified.
On June 10, 2018, one mixed-race and one Negro inmate came to Plaintiff's cell threatening him with murder and sexual assault for his incarceration conviction once Plaintiff came out of the cell. Plaintiff did not see their faces well enough to identify them. Plaintiff was too frightened to leave his cell to pick up his pain medication at the medical building. Plaintiffhas a mobility disability affecting his right hip, which is very painful.
On or about June 11, 2018, Plaintiff mailed defendant CDCR Secretary Kernan a memo alerting him to the threats against Plaintiff seeking protection. Plaintiff received a supportive response. (Exh. 8 and attached Form 22 response.)4
On June 12, 2018, defendant Harmon (floor custodial officer) and his partner informed Plaintiff he was paged for a medical appointment. An hour and a half later the booth officer opened Plaintiff's cell door instructing him to report to defendant Harmon for escort. Plaintiff asked the control booth officer why he had to be security escorted. The officer replied, (Id. at 10 ¶ 13.)
Plaintiff reported to defendant Harmon in his red paper orientation jumpsuit, lime green disability ADA mobility impaired vest, with his mobility aid auxiliary cane issued for the 57-year-old Plaintiff. 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." (Id. ¶ 16.) Plaintiff alerted defendant Harmon about his safety concerns because of 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 the medical building. 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." (Id. at 11 ¶ 19.) Plaintiff felt that this angry outburst by a white officer treated him, a Negro, differently than others (White, Mexican non-classified branded [sic], labeled non-classified branded, not an identifiable class group like Plaintiff, similarly situated.)
Fearfully, Plaintiff left the building at about 9:50am. To his left Plaintiff saw nine or more unhandcuffed STGs of different races, extremist convicts housed in Building C4-C-Sec.,returning from the solitary punitive security gym yard. Defendant J. Garcia was singlehandedly and recklessly escorting them as they lined up against the building with defendant J. Garcia following behind them. Using his cane, Plaintiff veered far to the right to the administration building to seek protection for his medical appointment. Defendant J. Garcia solicited a "C-over-C"5 STG gang member to attack Plaintiff from behind when Plaintiff was not looking. Defendant J. Garcia stood by and watched sadistically, directing his co-conspirator STG solicited hit man to leave the building wall and then sadistically watched the assailant creep ten or more steps directly toward Plaintiff for 25 seconds, unbeknownst to Plaintiff. STG convict Ramon Soto struck Plaintiff with his fist eight to ten times, struck Plaintiff on the back of his head with chopping blows to Plaintiff's right arm and body while Plaintiff's back was turned. Soto spun Plaintiff around so he was facing Soto. Plaintiff shielded his face with his left hand trying to keep his balance with the cane in his left hand. Plaintiff was unable to shield his face with his right arm and Soto struck him on the chin and yanked Plaintiff to the ground by grabbing Plaintiff's right bicep, breaking it and causing extreme pain. Plaintiff, partially unconscious, lay on the ground and defendant J. Garcia allowed his co-conspirator STG convict Soto to kick Plaintiff three times, striking his body, head, and right arm. Only then was Garcia satisfied with his solicited abuse victimization of Plaintiff. While Plaintiff was on the ground defendant Garcia threw a chemical pepper spray grenade at Plaintiff, which exploded on Plaintiff's right lower leg causing 2nd and 3rd degree disfiguring chemical burns six to seven inches long and about eight inches wide.
Then, defendant J. Garcia called off his co-conspirator hit man Soto. During this attempted murder, Plaintiff did not resist any officer, break any prison rules, hit his attacker, or strike him with his cane. Plaintiff never provided testimony that he defended himself from Soto's attack, though he testified to this in an excessive force video and administrative hearing for a fraudulent cover-up Rules Violation report. Emergency medical staff responded with awheelchair and defendant J. Garcia picked Plaintiff up by his right bicep sadistically and threw Plaintiff into the wheelchair causing Plaintiff to cry out in excruciating pain! Defendant Garcia mockingly exclaimed, "Dillingham wanted protection, look at him now," as Garcia and his partners humiliated Plaintiff, laughing. (Id. at 14-15 ¶ 44.)
After Plaintiff was attacked he was wheeled to the prison infirmary where the nurse told him that his attacker possibly caused him a severe right bicep rupture, an injury where the tendon is detached from the bone. Later that day another nurse...
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