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October 21, 2005.

ERNESTO WADE, Plaintiff,
RATELLA, ET AL., Defendants.

The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge

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. ยง 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. 12(c)

  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 ...

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