(PC) Richson-Bey v. Juarez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SEAN JEFFERY RICHSON-BEY, Case No. 1:22-cv-00567-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 JUAREZ, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendant. CLAIMS 16 (ECF Nos. 1, 6, 7) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff Sean Jeffery Richson-Bey (“Plaintiff”) is a state prisoner proceeding pro se and 21 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 22 On June 30, 2022, the Court screened Plaintiff’s complaint and found that Plaintiff stated 23 a cognizable claim for excessive force against Defendant J. Juarez, for the incident on September 24 21, 2021, in violation of the Eighth Amendment, but failed to state any other cognizable claims. 25 (ECF No. 6.) The Court ordered Plaintiff to either file a first amended complaint or notify the 26 Court of his willingness to proceed only on the cognizable claims identified by the Court. (Id.) 27 On July 12, 2022, Plaintiff notified the Court of his willingness to proceed on the cognizable 28 claim identified by the Court. (ECF No. 7.) 1 II. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 A complaint must contain “a short and plain statement of the claim showing that the 8 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 12 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 13 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 To survive screening, Plaintiff’s claims must be facially plausible, which requires 15 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 16 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 17 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 18 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 19 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 20 A. Allegations in Complaint 21 Plaintiff is currently housed at California State Prison, Corcoran (“Corcoran”) in 22 Corcoran, California, where the events in the complaint are alleged to have occurred. Plaintiff 23 names J. Juarez, Correctional Officer, as the sole defendant. Plaintiff alleges as follows: 24 On September 29, 2021, during compliance with commands to “get down” “by separation 25 to safe distance from area of activity Plaintiff was administered continuous stream of ‘MK-9 OC’ 26 spray to head/facial area from left flank and rear by Juarez for what seemed to be, until Plaintiff 27 was definitely in a prone position.” On September 30, 2021, Plaintiff awoke with accumulated 28 deposits of the chemical agent in the right eye which had coagulated, sealing the lid shut. Even 1 after cleaning his eye out with soap and water, his eye was still irritated with a feeling of 2 crystallized particles raked across his eye with every blink. 3 Plaintiff went to the CTC for treatment for his hand and complained to the provider of the 4 discomfort in his eye. The provider examined his right eye and discovered two corneal abrasions 5 caused by the chemical burn. The provider determined irritation to be caused by crystallization of 6 the chemical agent in the right eye. Provider cleansed the eye multiple times and scheduled 7 Plaintiff for a follow-up with an eye specialist. In the follow-up with the specialist, Plaintiff was 8 diagnosed with a “retinal tear of the right eye” on November 9, 2021. Plaintiff was given non- 9 invasive laser treatment to repair the “horseshoe” tear and is under care to determine long term 10 success. Plaintiff suffered spotty, blurry vision, bright blinking obfuscation, headaches, 11 migraines throughout the process. 12 Plaintiff alleges no penological purpose was served by the actions of Juarez as Plaintiff 13 was complying with commands, moving to an open space, posing no perceived threat to Juarez or 14 other officers. Plaintiff’s right eye received the direct impact from the spray. 15 Plaintiff seeks compensatory and punitive damages. 16 B. Discussion 17 1. Eighth Amendment 18 a. Excessive Force 19 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 20 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 21 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 22 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 23 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 24 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 25 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 26 However, not “every malevolent touch by a prison guard gives rise to a federal cause of 27 action.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “The Eighth Amendment's prohibition of 28 cruel and unusual punishments necessarily excludes from constitutional recognition of de minimis 1 uses of physical force, provided that the use of force is not of a sort repugnant to the conscience 2 of mankind.” Id. at 9-10 (citations and quotations omitted); Oliver v. Keller, 289 F.3d 623, 628 3 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, 4 not de minimis injuries). What violates the Eighth Amendment is “the unnecessary and wanton 5 infliction of pain,” i.e., infliction of suffering that is “totally without penological justification.” 6 Rhodes v. Chapman, 452 U.S. 337, 346 (1981). 7 For claims of excessive physical force, the issue is “whether force was applied in a good- 8 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 9 Hudson, 503 U.S. at 7. Relevant factors for this consideration include “the extent of injury . . . [,] 10 the need for application of force, the relationship between that need and the amount of force used, 11 the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the 12 severity of a forceful response.’ ” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)). 13 Finally, because the use of force relates to the prison's legitimate penological interest in 14 maintaining security and order, the court must be deferential to the conduct of prison officials. 15 See Whitley, 475 U.S. at 321–22. 16 Liberally construing the allegations in the complaint, Plaintiff states a cognizable claim 17 for excessive force against J. Juarez. Plaintiff alleges he was given commands, was complying 18 with the commands, but was nonetheless, pepper sprayed. 19 b. Deliberate Indifference to Serious Medical Needs 20 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 21 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 22 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 23 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 24 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 25 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and 26 wanton infliction of pain,’” and (2) “the defendant's response to the need was deliberately 27 indifferent.” Jett, 439 F.3d at 1096. 28 /// 1 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 2 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 3 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 4 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 5 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 6 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. 7 It is unclear whether Plaintiff is attempting to allege a deliberate indifference claim 8 against J. Jaurez. Plaintiff has not alleged any factual support for conduct by J. Juarez that 9 defendant “knew of and disregarded an excessive risk to inmate health or safety.” 10 2. 1836 United States-Morocco Treaty of Peace and Friendship 11 Claims based on the violation of the Treaty of Peace and Friendship have repeatedly been 12 found to be frivolous. See Bey v. Linder, No. 2:19-cv-1745 TLN DB PS, 2020 WL 5110357 13 (E.D. Cal. Aug. 31, 2020). See also Ingram El v. Crail, No. 2:18-cv-1976 MCE EFB PS, 2019 14 WL 3860192, at *3 (E.D. Cal. Aug. 16, 2019) (“Plaintiff's Moorish citizenship argument is a 15 frivolous attempt to establish diversity jurisdiction where none exits, and the ploy is not 16 new.”); El-Bey v. North Carolina, No. 5:11-cv-00423-FL, 2012 WL 368374, at *2 (E.D. N.C. 17 Jan. 9, 2012) (“any claim based on the contention that Plaintiffs are not subject to the laws of 18 North Carolina because of their alleged Moorish nationality and the Treaty of Peace and 19 Friendship of 1787 is frivolous”); El Ameen Bey v. Stumpf, 825 F. Supp. 2d 537, 558 (D. N.J. 20 2011) (“a litigant’s reliance on any Barbary Treaty, including on the Treaty with Morocco, for the 21 purposes of a civil suit raising claims based on the events that occurred within what is 22 the United States’ geographical territory is facially frivolous.”); Richson-Bey v. Bell, No. 1:22-cv- 23 00447 BAM (PC), 2022 WL 1541688, at *7 (E.D. Cal. May 16, 2022) (To the extent Plaintiff 24 bases any of his claims on violations of the 1836 United States-Morocco Treaty of Peace and 25 Friendship, those claims are frivolous and fail to state a cognizable claim for relief.) 26 Plaintiff cannot state a claim under the 1836 United States-Morocco Treaty of Peace and 27 Friendship. Those claims are frivolous and fail to state a cognizable claim for relief. 28 /// 1 III. Conclusion and Recommendation 2 Based on the above, the Court finds that Plaintiff’s complaint states a cognizable claim for 3 excessive force against Defendant J. Juarez, for the incident on September 21, 2021, in violation 4 of the Eighth Amendment. However, Plaintiff’s complaint fails to state any other cognizable 5 claims. 6 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 7 District Judge to this action. 8 Furthermore, it is HEREBY RECOMMENDED that: 9 1. This action proceed on Plaintiff’s complaint, filed May 11, 2022, (ECF No. 1), against 10 Defendant J. Juarez for excessive force in violation of the Eighth Amendment; and 11 2. All other claims be dismissed based on Plaintiff’s failure to state claims upon which relief 12 may be granted. 13 * * * 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 16 being served with these Findings and Recommendations, Plaintiff may file written objections 17 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 19 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 20 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 21 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: July 13, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28