The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
SCREENING ORDER; ATTACHMENT (NOTICE OF SUBMISSION OF DOCUMENTS)
Plaintiff Lazarus Ortega is a prisoner proceeding pro
se. On June 6, 2008, Ortega filed the First Amended Complaint in this matter. Ortega asserts that Defendants failed to respond to his multiple requests to change cells because Ortega thought his cellmate was dangerous. Ortega alleges that Defendants did not move Ortega into a new cell. Ortega seeks to hold Defendants liable under 42 U.S.C. § 1983 for the assault that he subsequently suffered at the hands of his cellmate.
On January 5, 2009, this case was reassigned to this judge. Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, this court has "screened" Ortega's First Amended Complaint and determined that, to the extent it asserts claims against Defendants in their individual capacities, the First Amended Complaint states potentially viable claims. Accordingly, the court directs service of the First Amended Complaint on Defendants in their individual capacities. However, to the extent the Complaint asserts money damage claims against Defendants in their official capacities, the court dismisses those claims, as Defendants in their official capacities have immunity from such claims.
The First Amended Complaint alleges that California Department of Corrections and Rehabilitation ("CDCR") officials were deliberately indifferent to Ortega's safety when they failed to respond to Ortega's multiple requests to change cells because his cellmate had threatened to harm and/or kill Ortega.
Ortega says that, on or about November 8, 2006, he asked CDCR correctional officer Deason to arrange for Ortega to be transferred to a new cell because Ortega's cellmate, inmate Williams, had made threats to harm and/or kill Ortega. First Amended Complaint (June 6, 2008) ¶ 12. Ortega alleges that Deason responded to his request by saying, "I don't do cell moves on my [F]ridays, go ask HUTCHINGS." Id. ¶ 13. Deason is named as a Defendant in his individual capacity. Id. ¶ 3.
Ortega alleges that, soon after talking with Deason, he asked CDCR correctional officer Hutchings to move Ortega to a new cell because his cellmate had threatened him. Ortega says that Hutchings responded by telling Ortega that there were no vacant housing cells that Ortega could be moved to. Ortega alleges that he informed Hutchings that cell #232 was vacant, but that Hutchings responded that cell #232 was out of order because of a plumbing problem. Hutchings allegedly then told Ortega that a cell change was not going to happen and that Ortega would just have to wait for a cell to open up. See First Amended Complaint ¶¶ 14-16. Hutchings is named as a Defendant in his individual capacity. Id. ¶ 4.
Ortega alleges that he then met with his mental health expert, CDCR psychologist Costa, and told Costa what had happened with Deason and Hutchings. Ortega then allegedly asked Costa for help. Costa allegedly told Ortega that Ortega was exaggerating and that Costa, as the staff psychologist, could not help Ortega change his cell because that was an issue of custody. See First Amended Complaint ¶ 17. Costa is named as a Defendant in his individual capacity. Id. ¶ 5.
Ortega alleges that the following day, November 9, 2006, he once again asked Hutchings for a cell change out of concern for his safety. Ortega alleges that Hutchings refused to act. See First Amended Complaint ¶ 18.
Ortega alleges that, a little later that day, he orally complained to Deason and Hutchings's supervisor, CDCR Lieutenant Williamson, that safety concerns made a cell change imperative. Ortega says that he told Williamson that he had tried to get Deason, Hutchings, and Costa to move his cell, but that none of them had acted. Ortega alleges that Williams also did nothing. See First Amended Complaint ¶¶ 19-21. Williamson is named as a Defendant in his individual capacity. Id. ¶ 6.
Ortega says that, when he then returned to his cell, his cellmate "slammed" a 13-inch television set into his head, knocking him unconscious. See First Amended Complaint ¶ 23. Ortega says that he was taken to the emergency room at the University of California Davis Hospital and was treated for severe head, neck, spine, and nerve damage, as well as breathing problems. Id. ¶ 24.
Ortega alleges that CDCR associate warden Reyes and CDCR warden Walker failed to properly train and supervise Deason, Hutchings, Costa, and Williamson regarding what to do when an inmate asks to be assigned to a new cell based on safety concerns. Reyes and Walker ...