Robinson v. Davey
| Decision Date | 26 October 2018 |
| Docket Number | 1:17-cv-01524-DAD-GSA-PC |
| Parties | ANTHONY L. ROBINSON, Plaintiff, v. DAVE DAVEY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Anthony L. Robinson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 15, 2017. (ECF No. 1.)
Plaintiff's original Complaint was unsigned. On May 22, 2018, the court issued an order striking the Complaint for lack of signature and granted Plaintiff thirty days to submit a signed complaint. (ECF No. 20.) On July 2, 2018, Plaintiff filed a First Amended Complaint bearing his signature. (ECF No. 24.) The First Amended Complaint is now before the court for screening. 28 U.S.C. § 1915A.
The court is required to screen complaints in civil actions in which a prisoner seeks redress from 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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). 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. While factual allegations are accepted as true, legal conclusions are not. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Plaintiff is presently a state prisoner in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Corcoran State Prison in Corcoran, California,where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Dave Davey (Warden), Lieutenant (Lt.) Munoz, Correctional Officer (C/O) K. Welch, C/O H. German, Jr., C/O N. J. Blevins, C/O J. D. Wilson, S. Gonzales-Thompson (LVN), Lt. A. V. Johnson, and Sergeant (Sgt.) A. Peterson (collectively, "Defendants").
Plaintiff's allegations follow. On June 13, 2013, defendants custody officers H. German, Jr., and K. Welch escorted Plaintiff from the outdoor exercise cages back to his cell. After Plaintiff was secured in his cell he requested to speak to their supervisor, defendant Sgt. A. Peterson about Plaintiff's grievances and form 22 requests that Sgt. Peterson had not timely responded to or returned.
Defendants German and Welch asked Plaintiff a few times to give up the waist chain mechanical restraints. Plaintiff sat at the edge of his bed repeating, "I need to talk to Sergeant Peterson." ECF No. 24 ¶19. After defendants German and Welch conspired with each other to take matters into their own hands, and avoid informing their immediate supervisor Sgt. Peterson, defendant German walked to the rotunda area to inform the control booth officer, defendant N. J. Blevins, and floor officers Messick [not a defendant] and Gallardo [not a defendant] that Plaintiff would not give up the waist chain handcuffs.
Plaintiff saw defendant Blevins observing Plaintiff sitting at the foot of the bed wearing only boxer shorts, shoes and socks. Plaintiff was not expecting anything to occur since he was securely confined behind the closed door.
Defendant German said, "So, you're not going to give me my waist chain," and Plaintiff responded that he needed to talk to Sgt. Peterson. In violation of CDCR policies, defendant German sprayed Plaintiff in his cell with pepper spray through the open tray port. Defendant German sprayed Plaintiff on the left side of his head, face, eye, ear, neck, chest, shoulder, and stomach area with burning chemicals, then closed the tray port.
Plaintiff grabbed his jumpsuit out of panic, moved to the cell door area in shock, gasping for air, and put his face in the right side of the door trying to get some air. Plaintiff could not breathe because he is asthmatic, and he could not see once he got to the door.
/// Once Plaintiff regained his breath, he yelled through the side of the door that defendant German had sprayed him for no reason, trying to kill him, so that inmates and staff could hear what transpired. Defendant German asked for the waist chain and Plaintiff said, "Here is your waist chain[], open the tray port." ECF No. 24 ¶28. Defendant German ordered Plaintiff to get on his knees with his back to the door, to which Plaintiff complied. A second time, defendant German sprayed Plaintiff with pepper spray through the open tray port in the back of his head, neck, and back. Plaintiff got up and went to the door, and defendant German closed the tray port and walked to the rotunda area where officers Welch, Messick, and Galardo were watching the incident. Defendant German told an officer to hit the emergency alarm button, which she did.
Sgt. Peterson, Sgt. Wilson, and another sergeant came to Plaintiff's cell to get the waist chains. Plaintiff explained to Sgt. Peterson everything that defendant German had done. Sgt. Peterson asked Plaintiff if he held the tray port, and Plaintiff said, "No, I had the waist chain because I needed to talk to you about CDCR 22 forms request for interviews, you didn't return or respond to them, no need to hold the tray port, which is impossible while the waist chain [is] on Plaintiff's waist and handcuffs on both wrists." ECF No. 24 ¶30.
Plaintiff allowed Sgt. Peterson to remove his handcuffs and gave him the waist chain. Plaintiff asked Sgt. Peterson for a decontamination, which is required by CDCR procedure, but Sgt. Peterson denied Plaintiff a shower to rinse off the burning pepper spray. Plaintiff was denied medical treatment and a shower by defendant LVN S. Gonzales-Thompson, who knew Plaintiff has asthma and mental illness, which prohibits Plaintiff being pepper sprayed. Defendant Gonzales-Thompson failed to inform custodial defendants that Plaintiff was asthmatic, deliberately failed to inform Plaintiff's psychologist and psychiatrist about the situation before force was used, and denied Plaintiff his inhalers. Defendant Gonzales-Thompson did not come to Plaintiff's cell at all to medically evaluate and interview him, which is required by medical post orders and regulations.
When custody officers use force on inmates it is the medical officer's duty to write a 7219 report of injury or unusual occurrence. Defendant Gonzales-Thompson falsifieddocuments and did not interview or examine Plaintiff about the incident, as required. Defendant Gonzales-Thompson covered up the custody officers' crime and misconduct, aiding and conspiring with them under the Code of Silence for the Green Wall prison guards gang.
Defendant Gonzales-Thompson conspired with defendants German and Welch and filed a false report on Plaintiff's medical records. Defendant Gonzales-Thompson failed to notify mental health officials about the "false alleged 'holding the tray port incident'" prior to use of force. ECF No. 24 at 15:17-18. The doctors were supposed to be notified, to come and talk to Plaintiff, to persuade him to give up the handcuff waist restraints or release the food tray port, called a "deescalate situation cool down period," to prevent a cell extraction and use of force, according to rules in the Department Operations Manual. ECF No. 24 at 15:23-24.
Defendant Sgt. Peterson conspired with Lt. Johnson, Sgt. Wilson, Officer Blevins, and Officer Welch to cover up the attack by defendant German against Plaintiff, by entering false information on Plaintiff's 115 Rule Violation Report, CDCR 837-C Crime Incident Report, and CDCR 7219 Medical Report about the false allegation that Plaintiff was holding the food tray port. Defendant German charged Plaintiff with obstructing a peace officer resulting in use of force. Defendant Peterson reviewed and signed the CDCR 115 RVR. Defendant Johnson, defendant Peterson's supervisor, classified the RVR as a serious offense with 61-90 days credit loss, and signed the Crime Incident Report which consists of all staffs names who did a report on the incident, all the defendants stating the same false allegation to justify use of force. Plaintiff contends that according to policy for a mental health patient, Defendants were not allowed to use force. Plaintiff did nothing to justify any use of force.
All of the Defendants had training in use of force policies and knew they can't use force on inmates in cells in non-emergency situations without authorization...
To continue reading
Request your trial