The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION
FOR JUDGMENT ON THE PLEADINGS AND GRANTING DEFENDANTS' MOTION TO
DISMISS COMPLAINT [Doc. Nos. 36-37]
Plaintiff Ernesto Wade, a state prisoner currently incarcerated
at the California State Prison, Los Angeles, and proceeding pro
se, brings his Complaint pursuant to the Civil Rights Act,
42 U.S.C. § 1983. Plaintiff claims that by using excessive force
upon him and by subsequently failing to treat his resultant
injuries, correctional officers and administrative staff employed
at Richard J. Donovan Correctional Facility (RJD) violated his
Eighth amendment rights.
Upon review of the documents and evidence presented in this
case, and for the reasons set forth below, the Court recommends
that Defendants' Motion for Judgment on the Pleadings be
GRANTED, and Defendants' Motion to Dismiss Complaint be
GRANTED. PROCEDURAL BACKGROUND
Plaintiff instituted this action on March 21, 2003, naming as
defendants Ratella, the RJD Warden; P. Magee, the RJD associate
Warden; RJD correctional officers D.W Clark, J.S. Roberts, Mason,
and Alvarez; and Mark R. Katz, M.D., RJD's Health Care
Manager/Chief Medical Officer ("Defendants"). Doc. No. 1. On June
11, 2003, Judge Judith N. Keep granted Plaintiff's Motion to
Proceed in Forma Pauperis, and directed the United States Marshal
to effect service of process on Defendants. Doc. No. 3. On
December 16, 2003, Defendants answered Plaintiff's Complaint,
denying all liability and asserting numerous affirmative
defenses, including the defense that Plaintiff's claims are
barred by the statute of limitations. Doc. No. 8. On January 16,
2004, Plaintiff filed a Motion for Appointment of Counsel. Doc.
No. 12. The Court denied Plaintiff's motion on February 18, 2004.
Doc. No. 15.
On March 4, 2005, Defendants filed an Ex Parte Application to
File Dispositive Motions Beyond Hearing Deadline. Doc. No. 32.
This Court granted Defendants' Ex Parte Application on March 22,
2005. Doc. No. 35. Accordingly, Defendants filed the instant
Motion for Judgment on the Pleadings and to Dismiss Complaint
that same day.*fn1 Doc. No. 36. Plaintiff has yet to file an
opposition to this motion.*fn2 FACTUAL BACKGROUND
Plaintiff alleges that he sustained serious back injuries when
multiple correctional officers forcibly restrained him while
transporting him to an Inmate Classification Committee (ICC)
hearing on May 19, 1998. Complaint at 3, 5. According to
Plaintiff, he refused to attend the ICC hearing after having been
informed by RJD staff that his presence was not required by law,
opting instead to spend time in the prison yard. Id. Plaintiff
claims that after he refused to attend the hearing and as he
began to walk to the yard, correctional officers Clark, Alvarez,
and Roberts grabbed him, twisted his arms behind his back, and
"slammed" his body to the ground. Id. at 5. Next, Plaintiff
states that correctional officer Alvarez pressed his knee hard
against Plaintiff's neck, correctional officers Clark and Roberts
"slammed" their knees into Plaintiff's spine, and correctional
officers Clark, Roberts, Alvarez, and Mason placed restraints on
Plaintiff's wrists and ankles. Id. Once restrained, Plaintiff
asserts that the four correctional officers transported him to
the hearing site stomach down, holding him by only the chains
between his wrist and ankle restraints. Id. As a result,
Plaintiff contends that his arms were swollen and bleeding, his
head was bruised and swollen, his neck was stiff with pain, and
his groin area was sore to the touch. Id.
Upon his arrival at the site of the ICC hearing, Plaintiff
insists that he informed the officers present of those injuries
he sustained as a result of the correctional officers' use of
excessive force, and requested medical treatment. Id. at 5-6.
Despite repeated requests for such treatment, Plaintiff asserts
that he was not examined by a physician until at least one week
after the incident. Id. at 7. Some time thereafter, Plaintiff
states that his treating physician reviewed all x-rays taken and
provided him with a referral to see a back specialist. Id.
Plaintiff claims, however, that he was transferred to another
prison, and ultimately was never provided the opportunity to
receive treatment from the specialist. Id.
On April 5, 2000, Plaintiff filed the first of three formal
inmate appeals claiming that RJD failed to provide him medical
treatment for his injuries. Id. at Ex. A. Specifically,
Plaintiff declared that although RJD medical staff prescribed him
pain medication, allergies prevented him from taking the
medication as directed. Id. As such, Plaintiff requested that
he not only be treated by a back specialist, but also that he be
issued a soft mattress and a new cane. Id. In response, on May
3, 2000, prison physician Hunt examined Plaintiff, referred him
to the resident back specialist and issued him another cane, but
denied his request for a soft mattress. Id.
Dissatisfied with Dr. Hunt's diagnosis and treatment, Plaintiff
filed a second level appeal on May 8, 2000. Id. Upon review,
Plaintiff's appeal was partially granted. Id. For example, on
June 12, 2000, Health Care Manager/Chief Medical Officer Katz informed Plaintiff that an appointment with the
resident back specialist would be made for him, that he could
exchange his then-current cane for another, and that the
specialist could write a chrono*fn3 instructing that
Plaintiff be issued two mattresses. Id. at Ex. B. Once again,
Plaintiff was dissatisfied with these findings and filed a third
appeal. Id. at Ex. A. Upon review, the Inmate Appeals Branch
affirmed the decision of Chief Medical Officer Katz on January
16, 2001. Id. at Ex. C.
Plaintiff alleges that Defendants are liable for his pain,
suffering, and emotional distress resulting from those back,
neck, and leg injuries he sustained at the hands of RJD
correctional officers on May 19, 1998. Id. at 4. Plaintiff
contends that the correctional officer Defendants' use of
excessive force, as well as all Defendants' deliberate
indifference to his serious medical needs both immediately
following the use of force and during the years after the
incident violated his Eighth amendment rights. Id. at 6-8. With
regard to remedy, Plaintiff seeks damages in the amount of
$250,000, and requests adequate medical treatment including
treatment by a back specialist. Id. at 4.
Defendants contend that they are entitled to judgment on the
pleadings pursuant to Federal Rule 12(c). Defs' Amended Mem. at
3-5. For example, Defendants insist that Plaintiff's allegations
are not only barred by the applicable statute of limitations, but
also that Plaintiff's complaint discloses no basis on which to
infer that equitable tolling would be appropriate in this case.
Id. at 4-5. Moreover, Defendants underscore that Plaintiff's
delay prior to filing suit is consistent with his failure to prosecute it
after filing. Id. at 5. Consequently, Defendants request that
Plaintiff's claims be dismissed with prejudice. Id. at 9.
In addition, Defendants argue that Plaintiff's claims must be
dismissed for failure to prosecute diligently. Id. at 5-9. In
support, Defendants first underline that Plaintiff waited nearly
two years after the alleged incident before filing the first of
multiple formal prison appeals. Id. at 2. Second, Defendants
highlight that nearly five years elapsed between the date
Plaintiff's alleged claim for relief accrued and the date on
which he eventually filed suit. Id. Moreover, Defendants note
that since filing his complaint, Plaintiff has done nothing other
than seek court-appointed counsel. Id. at 3. Specifically,
Defendants declare that Plaintiff has neither conducted
discovery, nor complied with any of the requirements to prosecute
his case. Id. Accordingly, Defendants maintain that Plaintiff's
failure to prosecute diligently equally necessitates this case's
dismissal with prejudice. Id. at 9.
A. Judgment on the Pleadings Pursuant to Fed.R.Civ.P.
Federal Rule of Civil Procedure 12(c) provides that "[a]fter
the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). Judgment on the pleadings is "properly granted
when, taking all the allegations in the pleading as true, the
moving party is entitled to judgment as a matter of law." Smith
v. Nat'l Steel & Shipbuilding Co., 125 F.3d 751, 753 (9th Cir.
1997). "A district court will render a `judgment on the pleadings
when the moving party clearly establishes on the face of the pleadings
that no material issue of fact remains to be resolved and that it
is entitled to judgment as a matter of law." George v.
Pacific-CSC Work Furlogh, 91 F.3d 1227, 1229 (9th Cir. 1996),
cert. denied, 519 U.S. 1081 (1997) (quoting Yanez v. United
States, 63 F.3d 870, 872 (9t Cir. 1995)). Judgment "may only be
granted when the pleadings show that it is `beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to ...