Marceleno v. Cal. Dep't of Corr. & Rehab.

Decision Date20 May 2019
Docket Number1:17-cv-01136-LJO-GSA-PC
CourtU.S. District Court — Eastern District of California
PartiesERIK ABELINO MARCELENO, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED WITH PLAINTIFF'S CLAIMS FOR EXCESSIVE FORCE, ASSAULT, AND BATTERY AGAINST DEFENDANT MORA, AND THAT ALL OTHER CLAIMS BE DISMISSED FOR FAILURE TO STATE A CLAIM

OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS
I. BACKGROUND

Erik Abelino Marceleno ("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 August 23, 2017, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) The court thereafter screened the Complaint pursuant to 28 U.S.C. 1915A, and issued an order on June 27, 2018, requiring Plaintiff to either 1) file an amended complaint, or 2) notify the court of his willingness to proceed only with an excessive force claim against defendant Sergeant J. M. Mora. (ECF No. 18.) On July 30, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 19.)

II. SCREENING REQUIREMENT

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.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue in the Complaint allegedly occurred at Wasco State Prison in Wasco, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names one defendant, Sergeant J. M. Mora (Transportation Officer, CDCR Holdings Corp. Representative) ("Defendant").

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Plaintiff's allegations follow:

On August 18, 2016, a group of prisoners, including Plaintiff, were escorted to the Receiving and Release area of Wasco State Prison to be readied for transport to Calipatria State Prison. Defendant Sgt. J. M. Mora placed a waist chain and handcuffs on the prisoners and ordered them to form two rows inside a small hallway to wait for the bus. The first prisoner entered the hallway and stood next to the right-side wall. Plaintiff entered the hallway and stood to the left of the first prisoner to form the second row. Defendant Mora objected and instructed Plaintiff to form one row first by standing behind the first prisoner "heels to toes, dicks to butts." Amd. Compl. at 8 ¶ 9.1 Plaintiff was taken back by the sexually explicit language and complained demanding that Defendant explain, giving Defendant a chance to recant what he said. Defendant repeated his directive.

Plaintiff moved and stood heels to toes behind the first prisoner. Unfortunately, being fat caused Plaintiff's stomach to press lightly against the first prisoner, who pushed Plaintiff away saying, "Hey, what's wrong with you? Don't ever touch me again!" Amd. Compl. at 8 ¶ 12. Plaintiff explained about his stomach and apologized. Defendant heard the exchange and yelled, "I said no f***ing talking over there." Amd. Compl. at 9 ¶ 14. Plaintiff replied that Defendant's "heels to toes, dicks to butts" thing was a real problem and no man should be told to touch his genitals to another man's butt. Amd. Compl. at 9 ¶ 15. Like nothing, Defendant said, "Well, that's prison, so stop crying." Amd. Compl. at 9 ¶ 16.

The same thing happened with the next prisoner in line and almost every other. Most had to apologize for touching or bumping into someone else. When the second line was forming one of the prisoners bumped into Plaintiff when the prisoner was pushed away by another prisoner. Plaintiff told him it was not his fault, but the Defendant's fault for forcing them to line up in that way.

Suddenly, Plaintiff was being crushed hard between a door/wall and defendant Mora whowas yelling, "I said no f***ing talking, a**hole, shut the f*** up!" Amd. Compl. at 9 ¶ 19. Worse, seeing Plaintiff was hurt, Defendant continued, "Yeah, that's right, you want to keep running your f***ing mouth, just keep crying and you'll really get it," before at last pushing himself off the Plaintiff and starting to walk back to where he was. Amd. Compl. at 10 ¶ 20. Plaintiff felt a great jolt of pain throughout his whole body and nearly fell but said, "You didn't have to assault me like that," to which Defendant responded, "Ha, that ain't no assault. Keep running your mouth and you'll see a real assault." Amd. Compl. at 10 ¶ 21.

In fear or panic, Plaintiff yelled out, "You all heard and saw this! He just assaulted and threatened me in front of all you guys, which makes you all witnesses!" Amd. Compl. at 10 ¶ 22. Plaintiff believes there were cameras on ceilings and walls of the Receiving and Release area of Wasco State Prison. Plaintiff then yelled out to Defendant, "I want all video footage and recordings of this too," to which Defendant replied, "There is none, sorry," and then disappeared from view. Amd. Compl. at 10 ¶ 24.

Soon after, Defendant returned to take inventory of the prisoners. When Defendant called out Plaintiff's name, Plaintiff said, "I'm the inmate you just assaulted," to which Defendant replied, "That wasn't no assault. You obviously don't know what an assault is." Amd. Cmpl. at 11 ¶ 25. Defendant instructed the prisoners to walk outside and board the bus. Plaintiff did not want to but did so when he saw other officers were on the bus.

Once the prisoners were boarded and seated, Defendant gave a speech about what he demanded on his bus. In closing, he asked the required safety questions, 1) Did anyone forget to take their medication? 2) Does anyone need medical attention? and 3) Does anyone no longer feel they could safely take the bus ride? Plaintiff immediately raised his hand and loudly told Defendant that what he had done to him in the hallway had really injured him and he needed medical attention. Defendant gave Plaintiff a hard look, looked at his fellow officers then immediately took Plaintiff off the bus and escorted him to the front of the bus where he stopped and asked Plaintiff if he really wanted to reveal what had happened, and if he truly needed medical attention. Plaintiff replied that he did and Defendant said, "Well, you know why I did it, right?" Amd. Compl. at 12 ¶ 31. Fearing further beating, Plaintiff replied, "Because I talkedand you didn't want me to talk." Amd. Compl. at 12 ¶ 32. Defendant grabbed Plaintiff's arm and escorted him back inside the prison where he informed another sergeant that Plaintiff was requesting medical attention.

A nurse soon arrived to tend to Plaintiff. She asked what had happened and Plaintiff told her everything. The nurse looked at Defendant, then at the other sergeant before writing something on a paper and giving it to the other sergeant and saying that Plaintiff can go. Shocked that the nurse was doing nothing more, Plaintiff asked if she could give him something for the pain, but she just walked away. Plaintiff was placed back on the bus and it departed.

Upon arrival at his destination, Plaintiff again requested medical attention but was given the same care when the nurse heard how it had happened. Plaintiff gathered the required administrative grievance and medical forms to complain of the issues. Plaintiff exhausted his administrative remedies. Plaintiff also filed a claim with the Government Claims Program as instructed on the Government Claims Form, but did not receive a reply.

Plaintiff continues to suffer severe pain and emotional distress.

Plaintiff requests trial by jury, appointment of counsel, costs of suit, attorney fees, a declaratory judgment, and compensatory, punitive, and hedonic damages.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
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