Wells v. Kendall
| Decision Date | 24 April 2019 |
| Docket Number | No. 2:17-cv-2709 AC P,2:17-cv-2709 AC P |
| Court | U.S. District Court — Eastern District of California |
| Parties | ANDRE WELLS, Plaintiff, v. R. KENDALL, et al., Defendants. |
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF Nos. 2, 5. Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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 "frivolous, malicious, or 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).
A claim "is [legally] frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). "[A] judge may dismiss . . . claims which are 'based on indisputably meritless legal theories' or whose 'factual contentions are clearly baseless.'" Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations omitted).
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)." Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
////cognizable right of action.'" Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
The first amended complaint alleges that defendants Kendall, Abrahms, Mcguire, Lord, Fuji, and Gonzales, as well as two Doe defendants, violated plaintiff's First, Eighth, and Fourteenth Amendment rights and his rights under the Rehabilitation Act and state tort law. ECF No. 7 at 2-18. Plaintiff prefaces his claims by alleging that he "is a member of a protected class under Coleman v. Brown under the Fourteenth Amendment of the constitution." Id. at 4, 5, 7.
Plaintiff alleges that on January 1, 2017, he was on the phone with his foster mother when he received news that his brother had passed away. Id. at 12, ¶ 13, 15. Almost immediately after receiving this news, while plaintiff was still visibly upset, defendant Kendall told him to get off the phone. Id., ¶ 16. When plaintiff asked for a minute, Kendall told him twice more, in rapid succession, to get off the phone. Id., ¶¶ 18-19. Then, without warning or telling plaintiff to turn around and cuff up, Kendall "slammed" plaintiff when he turned away. Id., ¶¶ 21-22. While Kendall had plaintiff face down, he put his knee in plaintiff's back while bending back his right arm. Id. at 13, ¶ 26. Plaintiff resisted by pulling his arms toward his stomach, which caused Kendall to jerk his arms back and say that plaintiff was trying to bite him. Id., ¶¶ 27-28. After refuting that he was trying to bite Kendall, plaintiff began complying with orders and asked Kendall why he "slammed" him. Id., ¶¶ 29-31. Two Doe officers then escorted plaintiff to thesally port where he made a complaint of excessive use of force and an excessive force video was made. Id., ¶¶ 33, 37-38. While in the sally port, plaintiff 's restraints were so tight that they cut off circulation and made his fingers numb. Id., ¶ 40. When he told defendant Lord that his cuffs were too tight, Lord told him that he "shouldn't of got in them." Id., ¶ 42.
Plaintiff was eventually released back to the yard, but was called back to the sally port the next day and was held there for approximately seven hours in the freezing rain while once again handcuffed too tightly. Id. at 14, ¶¶ 45, 50-52. During that time, defendant Lord refused to loosen plaintiff's handcuffs or let him urinate, drink water, or take shelter from the rain. Id. at 5. He expressed that he was beginning to feel suicidal and was taken to a crisis bed. Id. at 14, ¶¶ 53-55. While in the crisis bed, he was denied medical treatment for his back spasms, and on January 6, 2017, after six hours of laying on the ground and hitting the door asking for assistance, he was put in a gurney and given a Haldol shot by a John Doe nurse. Id. at 14-15, ¶¶ 55-58.
Sometime later, plaintiff had a disciplinary hearing at which Kendall lied and said that plaintiff had assaulted him, resulting in plaintiff being sent to administrative segregation and then to a security housing unit. Id. at 15, ¶ 63. On June 6, 2017, about two months after plaintiff was returned to the yard, Kendall retaliated against plaintiff for making the excessive force complaint by taking plaintiff's food and throwing it in the garbage. Id., ¶¶ 63-65. About two weeks later, defendant Abrahms, who is friends with Kendall, denied plaintiff his Ramadan meal and day room access, and later denied him the ability to go to his treatment group. Id. at 15-16, ¶¶ 66-67.
Plaintiff further alleges that on June 24, 2017, Kendall escorted him to a disciplinary hearing on an unrelated fighting charge. Id. at 16, ¶¶ 68, 70. Defendant Mcguire acted as the hearing officer, and after finding plaintiff guilty issued an excessive punishment. Id., ¶¶ 70-72. She then got angry when there was not a second charge, and when she asked Kendall why she could not find the second charge he said that it probably happened on a different shift. Id., ¶¶ 73-78. At that point, Mcguire dismissed plaintiff. Id., ¶ 79. Plaintiff appears to allege that after the hearing, Kendall took all of his property. Id. at 5.
Finally, plaintiff alleges that on July 6, 2017, he returned to his cell and found his property missing. Id. at 16, ¶ 81. Defendants Fuji and Gonzales responded, and plaintiff told them that hewas being subject to retaliation by Kendall and his co-workers and tried to submit an appeal. Id. at 17, ¶¶ 82-87. Gonzales refused to sign the appeal and said that he was going to give plaintiff's property back, then asked if plaintiff was sure that he wanted to submit the appeal. Id., ¶¶ 88. Plaintiff took the question as a threat that he wouldn't get his property back and would suffer more retaliation if he filed an appeal. Id., ¶ 89.
Farmer v. Brennan, 511 U.S. 825, 834 (1970) (internal quotation marks and citations omitted). Second, the prison official must subjectively have a sufficiently culpable state of mind, "one of deliberate indifference to inmate health or safety." Id. (internal quotation marks and citations omitted). The official is not liable under the Eighth Amendment unless he "knows of and disregards an excessive risk to...
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