Sekona v. Perez, 1:19-cv-00400-NONE-GSA (PC)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesETUATE SEKONA, Plaintiff, v. R. PEREZ, et al., Defendants.
Docket Number1:19-cv-00400-NONE-GSA (PC)
Decision Date12 May 2020

R. PEREZ, et al., Defendants.

1:19-cv-00400-NONE-GSA (PC)


May 12, 2020

(ECF No. 1.)



Etuate Sekona ("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 March 28, 2019, Plaintiff filed the Complaint commencing this action, which is now before the court for screening. 28 U.S.C. § 1915. (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).

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"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 in Delano, California, where the events at issue in the Complaint allegedly occurred 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) R. Perez, (C/O) L. Munoz, (C/O) C. Sims, and (C/O) Maldonado (collectively, "Defendants"). Plaintiff proceeds against Defendants in their individual and official capacities.

Plaintiff's allegations follow1:

Defendant C/O Perez is a floor watch officer on the second watch shift on the SNY2

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yard, Building D-4. Plaintiff was an inmate there in cell #130.

On October 30, 2018, defendant C/O Perez heard Plaintiff speaking to his lawyer on the telephone in the office of the D-4 Building. Perez listened to Plaintiff and his lawyer talk about settling Plaintiff's case no. 2:17-cv-0346-KJM-EFP. Perez said to Plaintiff, "You [are] going to [get] lots of money!" (Complaint, ECF No. 1 at 6:6.) After that day Perez acted negatively toward Plaintiff, harassing him and expressing an intent to injure Plaintiff. She [Perez] harassed Plaintiff, violated his First Amendment rights, and subjected him to anti-Semitism because of his litigation and his race.

Plaintiff's cellmate Nguyen harassed him, threatened him, and stole his property. When Plaintiff was at school, Nguyen gave Plaintiff's things to one of Nguyen's friends. Plaintiff told defendant Perez but she ignored it until his cellmate attacked him. On November 17, 2018, Plaintiff was assaulted by his cellmate Nguyen, who punched Plaintiff in the face, jaw, neck, and head and kicked Plaintiff when he was down. Plaintiff was hospitalized for 2 days with bleeding on the brain, which persisted for a month. Plaintiff suffered brain damage, bleeding on the brain, anxiety and depression, mental disorder, and permanent pain and suffering. Inmate Nguyen had not been Plaintiff's choice as a cellmate. Defendant Perez had handpicked inmate Nguyen, and Nguyen attacked Plaintiff and hurt him badly. This was elder abuse. Perez took a report from Plaintiff about his cellmate. Perez moved Nguyen out of Plaintiff's cell and handpicked a new cellmate for Plaintiff to stop him from complaining.

Defendant Perez went to Building D-3 and picked a younger cellmate, Miko, for Plaintiff, without Plaintiff's consent to harm and hurt Plaintiff. Plaintiff told defendant Perez that if any assault occurs it will be from her failure to let Plaintiff choose his own cellmate. Previously, on July 23, 2018, Sergeant Delima [not a defendant] told Plaintiff to suggest a cellmate he was comfortable and compatible with, but defendant Perez did not like that idea. Plaintiff gave Sergeant Delima names of possible cellmates, but Perez did not accept them.

Defendant Perez always harassed Plaintiff. She knocked on his cell door if she worked the 6:00am shift and Plaintiff was in bed. She pushed Plaintiff's wheelchair far away from his door so Plaintiff had to walk to his wheelchair without help when he needed it. She never gave

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Plaintiff a disability cell with a big enough door to fit his wheelchair inside. This was discrimination because the ADA cell was taken by Miko, an inmate with a walker, who was of "her people['s] race." (Id. at 7:13.) This violated Plaintiff's ADA and Eighth Amendment rights. Defendants Perez and Munoz are Mexicans, and Plaintiff is a Pacific Islander and Tongan citizen. Plaintiff's accuser, Miko, is also a Mexican. Plaintiff is not racist, but they are. They favor each other and Plaintiff can feel it. Perez did not speak to Plaintiff the same as she spoke to Nguyen, the accuser. Plaintiff requested bigger size shoes and for 2 years Perez never helped him. When Nguyen came she gave Nguyen new shoes in 2 days. Perez discriminates against other races, mostly immigrants or blacks. Plaintiff saw it her way. That's why she intended to get rid of Plaintiff by her own people's race.

Plaintiff complained to defendants C/O Perez and C/O Munoz about his concern that he faced dangers from the cellmates they gave him. One cellmate had mental problems, one had a live pet rat, one told Plaintiff that defendant Perez wants to put him away or harm him. Too much complaining about cellmates caused her too much paperwork. Because of Plaintiff's situation - ADA, disability impairment, use wheelchair - no inmate wants him for a cellmate. Plaintiff requested from Perez a single cell, but it was denied 2 years in a row by the ICC committee.

Defendants C/O Perez, C/O Munoz, C/O Sims, and C/O Maldonado were all at KVSP during November and December 2018 when the incident occurred. After the elder abuse by Nguyen, when Plaintiff came back from the hospital, Perez continually harassed him. She knew he was injured badly and he told her she failed to protect him by her actions.

Defendant C/O Munoz worked at KVSP, mostly during the second watch shift. Munoz was working on November 17, 2018 when the incident occurred. Defendant Munoz responded first, filed a false report and conspired to defraud Plaintiff. After the incident, Munoz continued to harass Plaintiff and denied him due process when he failed to reply to Plaintiff's request for form 22, used to ask for an interview. Munoz willfully disobeyed the rules. Munoz caused a violation of Plaintiff's due process rights to a fair hearing at the prison under the Fourteenth Amendment, done out of discrimination. In a few weeks Munoz moved Plaintiff to the D-3

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Building out of intentional hatred. Plaintiff filed a 602 grievance about the 12th of December 2018. Plaintiff was almost hurt or killed by another inmate who was placed with Plaintiff by C/O Sims and C/O Maldonado. Sims and Maldonado intended to aid Perez and Munoz, as an accessory, to move Plaintiff there to finish the assaults.

On December 12, 2018, inmate Bowden, about 40 years old, pulled a knife on Plaintiff and demanded Plaintiff's paperwork. Plaintiff believes this was set up by defendant Munoz. Defendant Munoz breached [sic] the report on the November 17, 2018 incident, intending to aid the accuser inmate Nguyen. Through fraud and forgery, Munoz altered a written report with intent to twist the truth, violating Plaintiff's due process rights. Munoz stated in his report that Plaintiff said, "I did hit Nguyen first" and "I forgive him no bad evil feel [sic]." (Id. at 14:16-18.) Munoz intended to twist the report to make Plaintiff guilty in the disciplinary hearing. Plaintiff was found guilty because Munoz stated he was fighting, but there is no evidence and no marks on Nguyen. To show Plaintiff hit him, the Nurse's report said that on November 17, 2018, Plaintiff said he had no comment. Plaintiff was unconscious from brain damage and bleeding to his brain, the blood from over 10 punches and kicks from Nguyen's assault. Plaintiff was down on the floor and Munoz saw him there not fighting.

Munoz acted against Plaintiff's due process rights at Plaintiff's disciplinary hearing. Munoz worked with defendant C/O Sims to steal Plaintiff's litigation file. On December 12, 2018, inmate Bowden, Plaintiff's new cellmate, stole Plaintiff's file folder, legal paper, and other personal property - sandal, fan, air foods [sic], cosmetics, etc. Sims and Maldonado got some of Plaintiff's things back. The folder was empty. They never charged him [Bowden] with theft, which is a serious...

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