Ruiz v. Orozco

Decision Date08 June 2020
Docket Number1:19-cv-00048-AWI-GSA-PC
PartiesROGELIO MAY RUIZ, Plaintiff, v. J. OROZCO, et al., Defendants.
CourtU.S. District Court — Eastern District of California

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED AGAINST DEFENDANTS OROZCO AND HERNANDEZ ON PLAINTIFF'S EXCESSIVE FORCE CLAIMS, AGAINST DEFENDANT OROZCO ON PLAINTIFF'S MEDICAL CLAIM, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED, WITH PREJUDICE, FOR PLAINTIFF'S FAILURE TO STATE A CLAIM

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

Rogelio May Ruiz ("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 December 12, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On December 17, 2018, Plaintiff filed 182 pages of exhibits. (ECF No. 6.) On February 5, 2019, the court issued an order striking the exhibits as filed in violation of Local Rule 220 and granting Plaintiff leave to file an amended complaint within 30 days. (ECF No. 17.) On February 25, 2019, Plaintiff filed the First Amended Complaint. (ECF No. 18.) On April 27, 2020, the court issued an order requiring Plaintiff to either file a Second Amended Complaint or notify the court of his willingness to proceed only against defendants Orozco and Hernandez for use of excessive force. (ECF No. 21.) On May 27, 2020, Plaintiff filed the Second Amended Complaint which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 22.)

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 SECOND AMENDED COMPLAINT

Plaintiff is presently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue in the Second Amended Complaint allegedly occurred at Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants Correctional Officer (C/O) J. Orozco, C/O N. Hernandez, and a Jane Doe Defendant (Female C/O), (collectively, "Defendants").

Plaintiff's allegations follow:

On November 11, 2017, at 7:30am, defendant Jane Doe (C/O) walked by Plaintiff's cell #118 door without giving him breakfast. She asked Plaintiff to turn on the light, observed Plaintiff turn on the light, and then passed by his cell not stopping until she was in front of cell #119. When defendant Jane Doe stopped at the next cell door Plaintiff asked her six or eight times for his tray, but she answered, "Eat sh** you are fu**ing Chamo," and kept going. (2ACP, ECF No. 22 at 2:5.)1

At 8:30am, Plaintiff came out for his medication and immediately told defendants C/O Orozco and C/O Hernandez that defendant Jane Doe refused to give him meals and asked them if they could get his meals. Defendant Orozco told Plaintiff it was too late, told Plaintiff to eat sh** because he is a piece of sh**and that's why Jane Doe gave him nothing, and told Plaintiff to get out of here. (2ACP at 2:11-13.) Plaintiff said "Okay" and asked if he could talk with the Sergeant, but Orozco said no. (2ACP at 2:13.) Plaintiff told Orozco that if he didn't want to do his job Plaintiff would refuse to lock up.

When Plaintiff returned after getting medication, he took a plastic chair and sat in the middle of the doorway. Orozco pulled out the chair and Plaintiff sat down in the middle of the doorway, yelled, "Man down," and told Orozco that he (Plaintiff) needed an interpreter and needed to talk with the Sergeant about his breakfast. (2ACP at 2:21-23.) Orozco began kicking Plaintiff and hit Plaintiff in the eye breaking his cornea which began to bleed, and began twisting Plaintiff's right arm. Plaintiff could not stand the pain and placed his face on the floor. Then Orozco said, "Ooo, you are resisting arrest, I'm going to falsely charge you and kick your fu**ing a**." (2ACP at 2:1-3.) Defendant Orozco racially discriminated against Plaintiff when he used bad language about race. Orozco again kicked Plaintiff who was now seated in his cell. Plaintiff waited for Orozco to leave, but Orozco did not leave. Plaintiff did not want to stand up because he knew Orozco would attack him again. Plaintiff waited five minutes but both of the officersremained there. Plaintiff decided to stand up and told them he just wanted his breakfast. Plaintiff turned around and tried to walk over to his bed and sit down but Orozco suddenly struck his back twice and hips. Then, without any warning, Orozco sprayed Plaintiff three times and said, "Get down!" (2ACP at 3:14-16.) Plaintiff immediately obeyed the order and lay down in a prone position, but Orozco continued to spray Plaintiff for more than ten seconds until his bottle of spray was emptied.

Orozco entered Plaintiff's cell and handcuffed Plaintiff who was already face down in a prone position. Then, using both feet, he opened Plaintiff's legs, kicked his testicles four times, and struck his hips. Plaintiff's left testicle became very swollen. Plaintiff never tried to attack Orozco and did not throw the chair at Orozco.

Plaintiff is requesting witnesses who lived in cell #117 and #119 and watched everything because the Bakersfield court may give Plaintiff life for this false charge. Plaintiff is attaching CDCR form 22 where he requested the identification of these three witnesses, and the identification of defendant Jane Doe who denied him breakfast and lunch. KVSP did not respond to Plaintiff. Plaintiff requests the court to withdraw the false charge given to Plaintiff by defendant Orozco. Orozco lied when they put Plaintiff in the cage in front of the Sergeant's office. When the Sergeant asked Orozco if he wanted to see the doctor, Orozco answered no, "I don't have nothing." (2ACP at 3:10-12.) Orozco racially discriminated against Plaintiff when he told him, "Fu** Mexican Indian, wet back." (2ACP at 3:12-14.)

Defendant C/O N. Hernandez, in association with defendant Orozco, also acted against Plaintiff by harming and injuring him. On November 11, 2017, defendant Hernandez arrived at Plaintiff's cell #118. After that, Plaintiff asked defendant Hernandez for his breakfast tray that defendant Jane Doe failed to provide Plaintiff. But defendant Hernandez responded, "Eat sh**," and Plaintiff asked to talk with the Sergeant and an interpreter, but defendant Hernandez refused. (2ACP at 13.) Plaintiff told Hernandez that if he wouldn't grant Plaintiff's requests, Plaintiff would refuse to lock down. Plaintiff placed a chair in the middle of the doorway, which was taken by defendant Orozco, who gave it to Hernandez after spraying Plaintiff for no reason. Then defendant Hernandez struck Plaintiff's back and right rib. They said that Plaintiff tried to attackHernandez from the front, but that is a lie because Plaintiff was struck when he began to walk and tried to sit down on his bed. That was when defendants Hernandez and Orozco struck his back and hit his face. Plaintiff never offered resistance. Hernandez racially discriminated against Plaintiff when he denied Plaintiff an interpreter, refused to allow Plaintiff to talk to the Sergeant, and denied him a food tray. Plaintiff asked more than 6 times but was not allowed any intervention by the Sergeant.

After the attack by Orozco and Hernandez, they placed Plaintiff in a cage and defendant Jane Doe passed by in front of the cage. Plaintiff asked her to identify herself but she answered, "F**k you stupid Mexican, you're a piece of s**t, f**k Chilmo." (2ACP at 7:21-22.) Jane Doe violated CDCR rules because she would not identify herself. She also violated Plaintiff's rights when she denied him breakfast and lunch. She retaliated against Plaintiff when she talked about Plaintiff's conviction, and racially discriminated when she talked against Plaintiff's nationality. Plaintiff requests an investigation by the court against defendant Jane Doe who violated Plaintiff's rights. Plaintiff has attached a lot of CDCR forms with proof that Plaintiff requested information but was denied. Jane Doe opened confidential legal mail on December 13, 2017, losing an order pertaining to case no. 16-cv-3134-JAH-N-LS...

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