Detainee claims head injury after inmate throws water bottle at him

A pretrial detainee has claimed that he sustained a head injury when an inmate threw a full water bottle at him inside the Department of Corrections in Susupe last January and is now suing DOC for the incident.

Clifford Palacios is questioning why his alleged attacker, Ben Taisacan, was allowed to carry a water bottle, considering that DOC has a policy of not allowing inmates to bring water bottles up to their cells because of a history of prisoners using them as weapons.

The alleged water bottle attack was among the allegations that Palacios brought up in his lawsuit before the federal court against DOC, DOC Ccommissioner Wally Villagomez, DOC officials and officers Georgia Cabrera, Kelvin Semena, Damian De Leon Guerrero, Patrick Dowai, and two unnamed DOC officers.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona found Palacios’ complaint deficient but allowed him to amend and refile it by July 8, 2020. She said the case will be dismissed if Palacios fails to file the amended complaint by the deadline.

She said some of Palacios’ claims appear cognizable but the complaint itself is deficient for two additional reasons: Palacios does not indicate whether he is suing the DOC officials named in the complaint in their personal or official capacities, nor does he identify the specific remedy he is asking for.

Manglona allowed Palacios to proceed with his lawsuit without paying filing fees.

She ordered that the amended complaint must specify what remedy Palacios is asking for and that Palacios must also begin the complaint with a complete list of every person or entity he is suing and whether he is suing that individual in their personal capacity, official capacity, or both.

Aside from the water bottle attack, Palacios also alleged two separate incidents at DOC: failure to provide medical care, failure to protect, failure to maintain safe premises, and failure to investigate.

In the water bottle incident, the complainant said tensions between him and Taisacan began at 5:45am last Jan. 26 when he was awakened by Taisacan playing loud music on a television. Palacios said he repeatedly asked Taisacan to turn the volume down, but the latter refused and instead gave him a threatening gesture. When a DOC officer noticed the escalating argument, the two were placed on lockdown. Palacios said he refused Taisacan’s repeated challenge to fight him.

A DOC supervisor ordered the officers not to allow the two out of their cells at the same time.

The next morning, Jan. 27, Taisacan allegedly threatened Palacios again. Palacios said he repeated to Semena, who was on duty, that he was worried Taisacan would attack him. Palacios said he saw Semena and Taisacan talking less than five minutes later.

Palacios said during breakfast, his cell on the second floor was unlocked to allow him to refill a cup. At the same time, Semena reportedly allowed Taisacan to start heading up the stairs to the second floor, with a filled water bottle in his hand.

Palacios said unaware that Taisacan was ascending toward him when he stepped out of his cell. Palacios said Taisacan then allegedly threw the filled water bottle at him, hitting him in the head. He said he sustained a head injury and began bleeding. Paramedics later determined that Palacios needed to go to the hospital for stitches.

Palacios said that, while en route to the hospital, DOC officers took Palacios back to DOC to photograph his head wound before it was stitched. Palacios said he insisted that he needed to go to the hospital immediately, but even after photographing the cut, the officers first interviewed him about the incident. The officers subsequently brought Palacios to the emergency room at the Commonwealth Health Center so his head could be stitched.

Palacios said he filed several grievances with DOC to complain about Taisacan’s attack but all went unanswered. He said DOC made no effort to investigate the attack and treated him like a nuisance for complaining about it.

The other incident was about Palacios reporting that the bunk in his cell appears cheaply welded and does not have a ladder.

He said that, rather than provide a ladder, DOC officers instructed him to reach the top bunk by climbing on top of a sink and then hopping over to the bunk. Palacios said that, while attempting this maneuver, last Jan. 6 or 7, he slipped and hit his forehead against the edge of the bunk. Palacios said he was bleeding profusely and that an officer brought him to paramedics to treat the cut. Back in his cell, Palacios said he asked an officer for a Tylenol to help with the pain, but he was not given anything.

The last incident was last Jan. 8 to 9 when, following the bunk accident, Palacios allegedly suffered from a “stabbing migraine” and that his vision became blurry at times. Palacios said he feared he was suffering a pre-stroke and asked to see a paramedic again. He said guards told him that paramedics were coming, but none did.

In her order Tuesday, Manglona said that, based on Palacios’ claim of inadequate medical care, she cannot say that the officers took reasonable measures to abate an obvious risk of harm. Manglona said that, depending on how serious Palacios’ injuries appeared, and how much pain he was in, it may have been objectively unreasonable to delay giving him medical care for as long as the officers did. Consequently, Manglona said, this claim passes screening.

On the claim for failure to protect, the judge said that, by pointing at Palacios and making a punching gesture, Semena may have gone so far as to goad Taisacan into attacking Palacios. Thus, Manglona said, accepting the facts in the complaint as true, she finds that Palacios has stated a cognizable claim based on Semena’s failure to protect him from Taisacan.

On the claim of failure to maintain safe premises, Manglona said as a prerequisite to stating a claim here, Palacios must allege more than just that the guards instructed him to access the top bunk by climbing onto a sink. Manglona said Palacios must explain how, given his personal situation, doing so was clearly unsafe. Manglona said because Palacios did not include any such details in his current complaint, she finds that he has not yet stated a claim here. She said Palacios has an opportunity to file an amended complaint restating this claim with more facts.

On the claim of failure to investigate, Manglona said Palacios’ claim stems from DOC’s alleged failure to respond to his grievances about being attacked by another inmate. Under even the 14th Amendment, inmates do not have a constitutional entitlement to a specific prison grievance procedure, Manglona said. Therefore, the judge said, failing to process or decide an inmate’s grievance is not itself a due process violation. Manglona said DOC’s alleged failure to process Palacios’ grievances concerning one incident did not violate his 14th Amendment rights, and that he has not stated a valid claim here.

Last November, police arrested Palacios on charges of 36 counts of misuse of financial instruments. He allegedly made 36 transactions through Western Union using his employer’s debit card, totaling $15,614.