Garcia v. Nuno

• Decision Date: 29 March 2016
• Docket Number: Case No. 14-cv-00243-BAS(BGS)
• Court: U.S. District Court — Southern District of California
• Parties: ISRAEL GARCIA, Plaintiff, v. ANTONIO NUNO, ET AL. Defendants.

ISRAEL GARCIA, Plaintiff, v. ANTONIO NUNO, ET AL. Defendants.

Case No. 14-cv-00243-BAS(BGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 29, 2016

ORDER:

(1) APPROVING AND ADOPTING IN PART REPORT AND RECOMMENDATION;

(2) SUSTAINING DEFENDANTS' OBJECTION; AND

(3) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

(ECF Nos. 35, 37, 31)

On January 31, 2014, plaintiff Israel Garcia ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983 against several officers and medical personnel at Calipatria State Prison. On August 6, 2014, Plaintiff filed a First Amended Complaint ("FAC"), alleging the following: (1) Eighth Amendment deliberate indifference and Fourteenth Amendment due process violations against Officer Elmore; (2) Eighth Amendment excessive force, Fourteenth Amendment due process, and First Amendment retaliation violations against Officer Nuno; (3) Fourteenth Amendment due process, Eighth Amendment deliberate indifference, and First Amendment retaliation violations against registered nurses Manuel and Silva; (4) Fourteenth Amendment due process violation against Lt. Beltran; (5) Eighth Amendment deliberate indifference and First Amendment retaliation violations against Dr. Kornbluth; (6) Eighth Amendment deliberate indifference violations against Dr. Ball; (7) Eighth Amendment deliberate indifference violations against Warden Montgomery; and (8) Fourteenth Amendment retaliation violations generally against correctional staff and medical staff. (ECF No. 16.) Plaintiff seeks damages and requests injunctive relief concerning medical unit operations. (Id. at 17-18.) On January 23, 2015, Defendants filed a Motion to Dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 31.) Plaintiff did not oppose.

On August 17, 2015, United States Magistrate Judge Bernard G. Skomal issued a Report and Recommendation ("R&R"), recommending that this Court issue an Order granting Defendants' Motion to Dismiss on all claims except the Eighth Amendment excessive force claim against Officer Nuno and the Eighth Amendment deliberate indifference claim against Dr. Kornbluth. (ECF No. 35.) Magistrate Judge Skomal ordered the parties to file any objections no later than September 4, 2015. (Id. at p. 25.) Thereafter, Defendants filed an objection to the recommendation in the R&R that the Court deny the Motion to Dismiss with respect to Officer Nuno. (ECF No. 93.) Plaintiff did not file any objections.

For the reasons set forth below, the Court APPROVES and ADOPTS IN PART the R&R (ECF No. 35), SUSTAINS Defendants' objection (ECF No. 37), and GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss (ECF No. 31).

I. BACKGROUND

The Court hereby incorporates the facts laid out in Magistrate Judge Skomal's R&R. However, the Court elaborates below on the facts relating to Plaintiff's Eighth Amendment excessive force claim against Officer Nuno.

A. Plaintiff's Version

In the FAC, Plaintiff alleges Officer Nuno, a correctional officer at Calipatria State Prison where Plaintiff was an inmate, "acted maliciously with intent to harm or cause harm[,] as well as recklessness amounting to deliberate indifferences [sic] under the Eighth Amendment['s] prohibition on cruel and unusual punishment." (FAC at 2.) Plaintiff alleges that on February 23, 2013, Officer Nuno used excessive force in physically attacking him "without provocation or without any legal basis or authority." (Id. at 7.)

Specifically, Plaintiff alleges the following occurred on February 23, 2013: As Plaintiff's door was unlocked and opened by Officer Nuno that morning, he grabbed some hygiene items he had ready in clear plastic and put them in his back pocket. (Id. at 9.) Plaintiff then walked over to get his medication. (Id.) After he got his medication, Plaintiff attempted to slide the hygiene items under the door of a new inmate. (Id.) Officer Nuno told him to stop and bring the hygiene items over to where he was standing. (Id.) Plaintiff handed the hygiene items over to Officer Nuno upon request. (Id.) However, Plaintiff refused to go back to his cell until Officer Nuno returned the hygiene items to him. (Id.) Plaintiff and Officer Nuno argued over the return of the hygiene items, which Officer Nuno termed "contraband." (Id.) Plaintiff then said to Officer Nuno: "Are you dum[b] or stupid not to know that is not contraband." (Id.) At that time, Plaintiff realized that Officer Nuno was "very mad" so he "steped [sic] back away from him and took off [his] glasses and put them in [his] shirt pocket (front)." (Id.) By the time Plaintiff looked back up, Officer Nuno's elbow hit him the face, making him fall to the floor on top of his cane, with both of his hands on his cane. (Id. at 10.) Officer Nuno then jumped on top of Plaintiff and told him to stop resisting. (Id.) Once other correctional officers arrived, Officer Nuno stopped attacking Plaintiff and he was able to free his hands and be cuffed. (Id.) Plaintiff was injured as a result of the attack. (Id. at 10, 11, 14.)

Following the attack, Plaintiff alleges Officer Nuno "falsely prepared reportsincorrectly identifying himself as the victim in an effort to avoid criminal or administrative penalties for batter[y]," which resulted in Plaintiff being punished "without justification." (Id. at 10.) Plaintiff alleges that Officer Nuno falsely reported that he hit him the chest, and asserts that he did not lunge at Officer Nuno with his cane, as reported by G. Badilla. (Id. at 7, 10; see also ECF No. 16-1 at 13.) Plaintiff seeks, among other things, compensatory and punitive damages and a declaration that the acts and omissions described in his FAC violated his rights under the U.S. Constitution and laws of the United States. (Id. at 17.)

B. Officer Nuno's Version

The "Crime/Incident Report" filed by Officer Nuno on February 23, 2013, and attached to the FAC, states:

ON SATURDAY FEBRUARY 23, 2013 AT APPROXIMATELY 0745, WHILE PERFORMING MY DUTIES AS HCA INFIMARY #1, I OPENED INFIRMARY CELL #9 OCCUPIED BY INMATE GARCIA (T67693, inf-9l) TO SEE THE REGISTERED NURSE ON DUTY FOR VITALS. AFTER HIS VITALS WERE COMPLETED INMATE GARCIA T67693 THEN STARTED WALKING TOWARDS CELL #15. INMATE GARCIA ATTEMPTED TO THROW AN UNKNOWN OBJECT UNDER DOOR PANEL BUT IT GOT STUCK UNDER THE DOOR; I THEN ORDERED INMATE GARCIA TO BACK AWAY FROM THE DOOR AND CONFISCATED THE CONTRABAND. I THEN TOLD INMATE GARCIA THAT HE CANNOT THROW CONTRABAND UNDER CELL DOORS AND THAT HE NEEDED TO GO BACK TO HIS CELL. INMATE GARCIA BECAME VERY ANGRY AND DEMANDED HIS CONTRABAND BACK AND STATED "YOU AINT GONNA PUNK ME FOR MY SHIT". I THEN ORDERED HIM AGAIN TO RETURN BACK TO HIS CELL AND INMATE GARCIA THEN TOOK A BLADED STANCE AND REMOVED HIS GLASSES AND TOLD ME "LETS DO THIS, LET'S GO ALL THE WAY". INMATE GARCIA STRUCK ME WITH HIS RIGHT FIST ON MY CHEST WHILE HOLDING HIS CANE. I THEN PLACED BOTH MY HANDS ON HIS SHOULDERS, GRABING [SIC] HIS SHIRT AND TOOK HIM DOWN UTILIZING MY BODY WEIGHT. I THEN ORDERED INMATE GARCIA TO STOP RESISTING WHILE I ATTEMPTED TO PLACE HIM IN HANDCUFFS, HE

CONTINUED TO RESIST BY KEEPING BOTH HANDS TUCKED UNDER HIS BODY AND ROLLING AROUND, I MANAGED TO PULL INMATE GARCIA'S HANDS OUT FROM UNDER HIS BODY AND PLACE HIM IN RESTRAINTS WHILE ON TOP OF HIM. I THEN RELINQUISHED CUSTODY TO OFFICER R. CRUZ.

(ECF No.16-1 at 12.)¹

C. Outcome of Incident

An "Administrative Segregation Unit Placement Notice" filed February 23, 2013 by W. Newman, and attached to the FAC, states that Plaintiff "struck Officer Nuno on his chest with [his] fist" while being escorted, which necessitated physical force to quell the incident. (Id. at 14.) The Notice further states that based on Plaintiff's reported involvement in the battery of a police officer, Plaintiff was "deemed a threat to the safety and security of the institution and [was] being placed in Administrative Segregation pending a review of [his] program needs." (Id.) "As a result of this placement," the Notice states that Plaintiff's "credit earning, custody level, privilege group, and visiting status are subject to change." (Id.)

W. Newman also filed a "Crime/Incident Report" on February 23, 2013, which is attached to the FAC and is a "compilation of the involved staff's written reports." (Id. at 3.) In the Report, W. Newman states:

On Saturday, February 23, 2013, at approximately 0749 hours, Correctional Officer A. Nuno (HCA In-Pat Officer #1) was escorting Inmate M. Garcia (T67693, INF-09L) when Inmate Garcia struck Officer Nuno with his hand on the chest. Officer Nuno used physical force to stop the attack and restrain Inmate Garcia.

(ECF No. 16-1 at 3-4.) Under the "Use of Force" section, the Crime/Incident Report states:

Officer Nuno utilized physical strength to stop the attack by placing both his hands on Inmate Garcia's shoulders and then using his body weight he pushed Inmate Garcia to the floor were [sic] he landed on top of him and was able to place him in hand cuffs.

(Id.) As a result of the incident, the Crime/Incident Report states that Plaintiff was to receive a "CDC-115, Rules Violation Report (RVR) for a violation of California Code of Regulations (CCR), Title 15, Section 3005(b) charging him with the specific act of 'Battery on a Peace Officer.'" (Id. at 4.)

A Rules Violation Report was issued to Plaintiff on or about March 3, 2013, which repeated the statement Officer Nuno gave in his Crime/Incident Report. (Id. at 15.) Plaintiff appeared at a hearing for adjudication on this Rules Violation Report on May 18, 2013. (Id.) At the hearing, Plaintiff pleaded "Not Guilty" and stated "I'm innocent, I didn't do anything." (Id.) Officer Nuno was not required to appear at the hearing because he had "no relevant or additional information," but his written report was proffered as testimony and/or evidence. (Id.) At the hearing, Plaintiff was found guilty of violating California Code of...