Hardney v. Griffith

JOHN HARDNEY, Plaintiff, v. T. GRIFFITH, et al., Defendants.

No. 2:17-cv-2462 MCE AC P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 23, 2018

ORDER and FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner at California State Prison Sacramento, under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

For the following reasons, the court grants plaintiff's request to proceed in forma pauperis and provides plaintiff the choice between proceeding on his original complaint, as construed below, or filing a First Amended Complaint.

II. In Forma Pauperis Application

Plaintiff has submitted an affidavit and prison trust account statement that make the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis, ECF No. 2, will be granted.

Plaintiff must nevertheless pay the statutory filing fee of $350.00 for this action. See 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 to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's 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).

III. Screening of Plaintiff's Complaint

A. Legal Standards for Screening Prisoner Civil Rights Complaint

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). A claim is legally frivolous when 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).

Rule 8 of the Federal Rules of Civil Procedure "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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to "state aclaim to relief that is plausible on its face.'" Iqbal at 678 (quoting Twombly 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. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting Twombly at 557).

"A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) ("Pleadings shall be so construed as to do justice."). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

B. Plaintiff's Allegations

Although plaintiff filed his complaint while incarcerated at Mule Creek State Prison (MCSP), the conduct he challenges occurred during his prior incarceration at California State Prison Sacramento (CSP-SAC). See ECF No. 1. Plaintiff makes the following allegations.¹ On the morning of November 18, 2016, plaintiff was transported from CSP-SAC to the Amador County Superior Court by MCSP Correctional Officer (CO) Gold "and others." Id. at 12. At approximately 7:00 a.m., prior to transport, plaintiff was placed in waist chains connected to a "black box" to limit his hand movements, and leg irons that limited his steps to 6 to 12 inches. Id. at 11-2. Plaintiff arrived at the Superior Court before his 8:30 a.m. scheduled appearance. Plaintiff was not called at that time and remained in the court's holding cell, fully restrained, where he became claustrophobic and anxious. By 10:30 a.m., after officers failed to respond to plaintiff's inquiries, plaintiff had a panic attack and began yelling and kicking the door, askingwhen he would be brought into court. CO Griffith said he'd told the bailiff that plaintiff should appear last. Plaintiff asked to wait outside. Griffith threatened to tell the judge that plaintiff refused to appear; plaintiff kicked the cell and yelled that he wanted to see the judge. Griffith signaled to the control booth to open plaintiff's cell. Plaintiff moved to the back of the cell and sat down to avoid a confrontation. Id. at 13. Plaintiff alleges that MCSP COs Griffin, Gold, Rhoades, Gruenwald, Vasquez, and Matson then engaged in the following conduct:

When the door opened, defendants Griffith, Gold, Rhoades, Gruenwald, and Vasquez, and later Matson entered the cell without saying a word and grabbed plaintiff off the bench, thrusting his head and body against the wall several times, then pushed him out the door while they still had ahold of plaintiff using the momentum of their body weight and power to thrust plaintiff forward through the cell door into the wall in the hallway.

Once in the hallway they thrust plaintiff forward by the exit door using their combined bodyweight and strength to smash plaintiff's "155 pound body frame" against the wall while they waited for the control booth to open the exit door out of the courthouse holding area and into the parking lot.

Once the door was open they slipped plaintiff's feet from under him with the strength and momentum of the six officers on his back, as he fell forward face first slammed on the hard concrete floor, immediately causing plaintiff to lose consciousness for a short moment, then realizing blood [was] leaking from his face as he was lifted off the ground by his leg irons and waist chains and carried to the can in the hog tied position.

Plaintiff was then transported to the emergency Sutter Amador Hospital where he was treated for his head injuries and pain to his [w]rist[s], legs, back neck pains, followed by sutures to his forehead, weeks of pain, nauseous [sic] and vomiting.

Id. at 10, 13-4.

Plaintiff alleges that "[a]t the time of the events alleged above plaintiff had pending another civil complaint against officers at CSP-Mule Creek for 'excessive force' in which in that case officers sought to justify and cover up their violent misconduct with fabricating 'resisting' allegations." ECF No. 1 at 18.

Plaintiff was charged in a Rules Violation Report (RVR) with resisting the MCSP officers at the Amador County Superior Court. Id. at 15-6. The assigned investigative employee, Officer Villa, completed his investigation on December 18, 2016 but "failed to obtain video evidence ofthe incident of 11/18/[16]." ECF No. 1 at 16. Nor did Officer Villa review a December 22, 2016 supplemental incident report. Id. Plaintiff alleges that, at the December 24, 2016 hearing, he was denied the opportunity to impeach the reporting officers' statements, and to introduce video evidence of the incident. He alleges that another investigator (apparently subsequently retained by plaintiff), Mr. John Ambrose, a retired California Highway Patrol Officer, reviewed the Superior Court's security videos on July 28, 2017, and concluded that "the video describes a different version of the events reported by the officers, as described by Mr. Ambrose observation of the videos." Id. at 15.

The hearing officer at plaintiff's disciplinary proceeding was defendant CSP-SAC Lt. R. Cross, who at the time was named as a defendant in one of plaintiff's then pending civil rights cases. Id. at 16. Lt. Cross rejected plaintiff's efforts to obtain video evidence and impeach the reporting officers, and found plaintiff guilty of the charged offense. Thereafter plaintiff exhausted his administrative remedies challenging the disciplinary conviction. Id. at 18.

Plaintiff emphasizes in the complaint that he is a certified paralegal who, for several years, has contracted out his research and drafting services at $25 an hour, or for a flat fee. Id. at 18. Plaintiff alleges he has been unable to pursue gainful employment since his disciplinary conviction, apparently because he is so busy "defending himself on unjust...