The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are 1) motion to dismiss, filed on 2/14/08, by defendants Marrow, Dean, Tinseth, Roblez, Heintschel, Long, Neis (incorrectly named "Neil") and Williams, to which plaintiff filed an opposition on 3/03/08, after which defendants filed a reply on 3/07/08; 2) defendant Woodard's motion to join defendants' motion to dismiss, filed on 3/06/08, which request, although plaintiff filed his opposition on 3/14/08,*fn2 is hereby granted; 3) plaintiff's request for leave to file a second amended complaint and proposed second amended complaint, filed on 4/23/08.
The gravamen of plaintiff's allegations against defendants is that he was subjected to an excessive use of force in violation of his rights under the Eighth Amendment during an unnecessary cell extraction by defendants Morrow, Dean, Tinseth and Roblez, acting under the supervision of defendants Long, Heintschel and Neis, on 10/25/05, resulting in serious physical injuries to plaintiff. Amended Complaint (AC), pp. 2, 4-19,*fn3 filed on 9/20/07.*fn4 He also claims to have been subjected to deliberate indifference to his serious medical needs and a conspiracy to cover up constitutional violations in violation of the Eighth and Fourteenth Amendments. AC, p. 2.
At about 10:00 a.m. on 10/25/05, defendant Long asked plaintiff to "cuff up" so water in plaintiff's cell could be cleaned up. When plaintiff objected, defendant Long warned plaintiff if he refused he would be pepper-sprayed; plaintiff nevertheless continued to refuse and defendant Long left. About 15 minutes later, defendant Long returned with defendant Heintschel, shaking cans of pepper spray; defendant Long opened the food port and sprayed a can of pepper spray through the food port of plaintiff's cell and then closed the door. Five minutes later, more cans of pepper spray were "shot into his cell." Breathing became unbearable, so plaintiff breathed through a hole in the back window of his cell. With his back to the cell door, plaintiff heard a booming sound followed by another and felt something hit the right side of his head and lost consciousness. AC, p. 5.
Plaintiff contends that when he regained consciousness he was being struck by feet and fists although he offered no resistance. He was handcuffed, shackled, dragged from his cell by the leg shackles' chain, forced to stand and walk by defendants' Morrow and Dean even though he complained of the tight shackles causing him great pain. Plaintiff was not put on the gurney for the decontamination shower until defendants Morrow and Dean, after Morrow had looked back and yelled for plaintiff to "stop resisting," had forcefully slammed his face into the 6-blocks' door frame which "busted" his jaw open. Although non-defendant M.T.A. Schiller ordered that plaintiff be taken to the emergency room, defendants Morrow and Dean threw plaintiff head first into the shower by the leg irons and handcuffs, where plaintiff remained from 11:00 a.m. until 4:15 p.m. with the shackles and cuffs so tight "he lost all feeling in his hands and feet." AC, p. 6.
Defendant Pazos came to the decontamination shower and asked if plaintiff had injuries at 11:45 a.m., but even though plaintiff showed Pazos his injuries, included the laceration on his jaw, and described what had happened, defendant Pazos walked away doing nothing. AC, pp. 7, 15. Plaintiff states that he did not see non-defendant R.N. D. Klith or receive any medical treatment from her that day. At 4:15 p.m. on 10/25/05, non-defendant C/O Dunkle loosened plaintiff's leg irons and handcuffs and escorted plaintiff to the emergency room where defendant Williams wiped some of the blood off the plaintiff's jaw laceration for photographs by Dunkle, but she failed to treat, clean or close the laceration or check to determine if the jaw had been fractured or if plaintiff had a concussion; nor did she call a doctor. Plaintiff was taken to the holding cell until 6:30 or 7:00 p.m., then returned to the cell that was still contaminated with pepper spray. AC, pp. 7, 17-18.
Plaintiff claims that defendant Heintschel had nodded to defendant Morrow indicating that the video camera was turned off before defendant Morrow slammed his face into the door frame. AC, pp. 8, 14. Plaintiff contends that defendants Roblez and Tinseth acted with defendants Morrow and Dean in attacking him while he lay unresisting on the floor. AC, pp. 8. Defendants Dean and Tinseth kicked plaintiff multiple times while he lay helpless. AC, pp. 8-9. In addition, defendant Roblez had shot the 40 mm twice, one time causing a rubber block to strike plaintiff in the side of the head rendering plaintiff unconscious. AC, p. 10. Defendant Woodard failed to video record what occurred in the cell and turned the video camera off before plaintiff was slammed into the door frame. AC, pp. 12-13. Defendant Heintschel provided false information to defendant Nies for the use of force authorization; defendant Long authorized the use of unnecessary force and defendants Long and Heintschel stood in the doorway to block the video camera from recording the assault in plaintiff's cell. AC, pp. 14-15. Defendant Morrow filed a false report on what occurred, subjecting plaintiff to disciplinary action and possibility of felony charged for attempted battery on staff. AC, p. 9. Defendants Tinseth, Heintschel and Pazos, also filed a false report; defendant Dean filed a false CDC Rule 115 rule violation report. AC, pp. 10-11, 15-16. Defendant Nies authorized the excessive use of force, failed to ensure compliance with cell extraction procedures, and failed in his duty to protect plaintiff. AC, pp. 18-19. Defendants violated his Eighth and Fourteenth Amendment rights for which plaintiff seeks money damages. AC, pp. 2, 21.
Defendants move for dismissal under non-enumerated Fed. R. Civ. P. 12(b) alleging a failure to exhaust administrative remedies properly. Motion to Dismiss (MTD), pp. 1-2. Defendants move for dismissal of defendants Marrow, Dean, Tinseth, Roblez, Heintschel, Long and Neis. By defendant Woodard's subsequent joinder, dismissal of this defendant is also sought. As to defendant Pazos, the court has separately recommended dismissal of this defendant. Defendants seek to limit defendant's lawsuit against defendant Williams to a claim of deliberate indifference to serious medical needs on 10/25/05. Id.
Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)
In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on 11/09/07.
Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, ...