The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's request for sanctions regarding defendant B. Williams' discovery responses, filed on 7/24/08, and opposed by defendants, after which a reply was filed by plaintiff; 2) plaintiff's motions to compel discovery, filed on 7/31/08, and on 8/05/08, supplemented by a filing on 8/12/08, to all of which opposition was filed by defendants, after which plaintiff filed a reply; 3) plaintiff's motion for sanctions against counsel for defendants, filed on 9/05/08, to which an opposition was filed; 4) defendants Frates and Moore's motion to dismiss, filed on 11/14/08, to which plaintiff filed an opposition, after which defendants filed their reply; 5) Defendant B. Williams' motion for summary judgment, filed on 11/26/08, to which plaintiff filed his opposition, after which a reply was filed; 6) plaintiff's motion for sanctions against defendants' counsel, filed on 12/09/08, opposed by defendants, after which plaintiff filed a reply.
This action, originally filed on 1/11/05, is now proceeding on a second amended complaint, filed on 1/12/07, against defendants Dr. B. Williams, C/Sgt.*fn1 T. Frates, C/O*fn2 W. Moore.*fn3
Plaintiff alleges that inmates classified as EOP*fn4 are so classified for severe mental illness and are exclusively housed with other EOP inmates per CDCR*fn5 directive; that inmates classified as CCCMS*fn6 are inmates who are so designated due to less severe mental illness; and that neither at this time nor during the relevant period at issue herein was he classified by CDCR as mentally ill. In late June of 2001, plaintiff, while housed in administrative segregation (ad seg), was told by defendant Moore that he was to be moved into a cell with an EOP classified inmate named Thornton, P-76816. Plaintiff knew the much larger Thornton to be psychotic, and it was common knowledge to those in ad seg that Thornton had been placed there for beating an inmate with a hot clothes' iron. Second Amended Complaint (SAC), pp. 4-5.
Plaintiff protested the move, telling defendant Moore that he did not want to be placed in a cell with Thornton because he was a violent EOP classified inmate and would attack plaintiff who was not an EOP inmate. Nevertheless, defendant Moore placed plaintiff in handcuffs, escorting or dragging plaintiff to Thornton's cell and pushing plaintiff inside, then removing plaintiff's handcuffs through a slot in the cell door. From the moment he was placed in the cell with Thornton, plaintiff began to suffer mentally from the constant fear of being injured or even fatally attacked by Thornton. SAC, p. 5.
Two days after plaintiff had been forced in the cell with Thornton, Thornton threatened to murder plaintiff by bashing out his brains with his television. Later that same day, plaintiff saw defendant Moore and told him of Thornton's threat, begging Moore to remove him immediately from the cell. Defendant Moore refused, after which plaintiff pleaded with him to get a correctional sergeant or someone with supervisory authority so that plaintiff could tell a supervisor about plaintiff's severely mentally ill status and EOP classification and the threat he had made to plaintiff. Defendant refused either to call a supervisor or to notify anyone of the danger. Instead, defendant Moore told plaintiff to reduce his risk by assaulting and battering Thornton, stating as he walked away: "I'd just whip his ass." SAC, pp. 5-6.
About an hour later, plaintiff got the attention of Library Technical Assistant Ramos (not a defendant) and told him of the situation with Thornton and the threat he posed and how Thornton had been placed in ad seg for striking an inmate in the head with a hot iron. Plaintiff asked Ramos to ask the correctional sergeant to speak with him about the danger. Moments later, defendant C/Sgt. T. Frates appeared, whereupon plaintiff explained Thornton's murderous threat, his EOP classification and the reason for Thornton's ad seg placement in detail. Plaintiff also told defendant Frates of defendant Moore's advice to plaintiff to reduce his risk of harm by attacking and battering Thornton and also that he, himself, had no mental illness diagnosis or classification, angering Thornton further, asking Frates to move him (plaintiff). SAC, pp. 6-7.
When defendant Frates asked Thornton if the problem between plaintiff and Thornton was that serious, Thorton replied: "if you don't separate us, then one of us is going to come out in a body bag." Plaintiff believes that Frates, before walking off, encouraged Thornton to carry out his threat to plaintiff when she said: "there's nothing I can do about it; do whatever you have to do and just handle your business." Defendant Frates did nothing to separate them. SAC, pp. 7-8.
About two days later, Thornton ripped his cable from his TV, then punched plaintiff in the face while trying to pull plaintiff from his bunk and charged plaintiff. Plaintiff fought Thornton off until Thornton's attack stopped, during which time both of them suffered injuries. When Thornton stopped attacking plaintiff, plaintiff immediately went to the cell door and began to bang on the cell door yelling for the guards. SAC, p. 8.
While plaintiff was trying to be rescued, Thornton initiated a second attack, attacking plaintiff from the back. Plaintiff fought off Thornton again, both incurring further injury. Plaintiff saw non-defendant C/O Pollard and yelled for help, at which point Thornton made a third attack on plaintiff, injuring each even more. C/O Pollard and other guards responded and removed plaintiff from the cell. SAC, pp. 8-9.
Thornton's attacks resulted in lacerations and bruises to plaintiff's face and body, severe trauma to both his shoulders for which plaintiff is scheduled for long-delayed surgery, broken bones in his right hand, and a broken nasal passage which gives plaintiff constant pain and causes recurring nose bleeds. Plaintiff also contracted Hepatitis C from Thornton, presumably due to Thornton's blood infecting plaintiff through a laceration on plaintiff that Thornton caused. Moreover, plaintiff suffers severe psychological trauma as a result of Thornton's attacks and the inaction of defendants' Moore and Frates. He is in constant fear that he will be placed in a similar situation and is helpless to prevent it. His hands shake from anxiety, his sense of helplessness, and his shame at having had to strike a severely mentally ill individual to defend himself. SAC, p. 9.
Thornton's attacks on plaintiff occurred on 7/09/01. After submitting requests for medical treatment for his broken right hand bones and injuries to his shoulder, in a long-delayed response on 8/05/02, non-defendant Dr. Douglas ordered x-rays and blood tests for plaintiff, but Mule Creek State Prison (MCSP) medical staff did not comply with the orders, after which plaintiff submitted additional inquires as to why the orders were ignored. In response, defendant Dr. Williams told plaintiff he had reviewed plaintiff's medical file, assuring him that plaintiff would receive the doctor-ordered x-rays and blood tests and any treatment that was necessary. SAC, pp. 9-10.
Not until about nineteen months later, on 3/18/04, in response to an administrative appeal by plaintiff, were the blood tests that had been ordered by Dr. Douglas on 8/05/02, performed at which point plaintiff's Hepatitis C was discovered. Only as of 5/21/04, were the x-rays taken that had been ordered by Douglas on 8/05/02, which revealed plaintiff's fractured distal right metacarpal and his shoulder injury which prompted further examination. Additional diagnostic examination of the shoulder revealed that a steel rod needed to be inserted, for which surgery plaintiff was still waiting at the time of filing the instant second amended complaint and from which untreated injury plaintiff suffers constant pain. Plaintiff alleges that defendant Williams' inaction and deliberate indifference has resulted in further significant injury to his hand and shoulder and the ongoing failure to treat his shoulder is likely to cause more injury and that he continues to suffer from severe pain and emotional distress due to his untreated shoulder injury. SAC, pp. 10, 12-13.
Defendants Moore and Frates subjected plaintiff to cruel and unusual punishment and were deliberately indifferent to a substantial risk of serious harm by placing him in and then failing to remove him from an unsafe situation, i.e., in failing to protect him, even promoting inmate-on-inmate violence, in violation of his rights under the Eighth Amendment, as well as his due process rights under the Fourteenth Amendment. Their actions and inactions resulted in physical injuries to plaintiff as well as severe emotional and psychological distress. SAC, pp. 10-12.
Defendant Williams was deliberately indifferent to plaintiff's serious medical needs in violation of plaintiff's rights under the Eighth Amendment. Defendant Williams' inaction resulted in further significant injury to plaintiff's hand and shoulder, severe pain and suffering and emotional distress. SAC, pp. 12-13.
Plaintiff seeks monetary, including punitive, damages. Motion to Dismiss Defendants answered long ago. Although defendant Moore's (and defendant Williams') answer was filed on 10/06/05, and defendant Frates' answer was filed on 2/21/06, and were filed in response to the original complaint, defendants were given an opportunity to amend their answers in response to the second amended complaint, filed on 1/12/07, but evidently elected to proceed on their earlier filed answers. See Order, filed on 7/25/07. A Scheduling Order was filed on 5/28/08, setting the discovery cutoff date (8/29/08), and the deadline for the filing of pretrial dispositive motions (12/28/08). Nevertheless, not until 11/14/08, did defendants Moore and Frates bring their motion to dismiss alleging plaintiff's failure to exhaust administrative remedies before filing this action, pursuant to nonenumerated Fed. R. Civ. P. 12(b).*fn7 Motion to Dismiss (MTD), pp. 1-8. In their favor, while defendants Moore and Frates do not note it in their motion, they did raise and preserve the affirmative defense of non-exhaustion in their respective answers, filed on 10/6/05, p. 3, and on 2/21/06, p. 3.
Under Fed. R. Civ. P. 12(b), as to the specifically enumerated grounds 1 through 7, the rule announces that "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." This court finds that although this motion is one that is brought under the nonenumerated grounds of Rule 12(b), that, similarly, such a motion, generally, is timely when it, too, is brought prior to the filing of an answer. This is so because defendants have ready access to the CDCR records, or lack thereof, to support the motion and, if they do not, they have the means to seek an extension of time before filing an answer from the court to be permitted to gather the requisite information. Moreover, this litigation had been proceeding for nearly three years before defendants brought the instant motion and this court has expended time and resources on a previous discovery motion by plaintiff (opposed by defendants) resulting in an order and issuance of a subpoena which directed the moving defendants' counsel to serve a subpoena on the appropriate CDCR official for the medical records and prison disciplinary records of the inmate named Thornton, material relevant to the allegations against the defendants who bring the present motion. See Order, filed on 7/25/07 (docket # 67).
This court has not been able to uncover any binding and conclusive authority on the issuance of the timeliness, or lack thereof, of a nonenumerated 12(b) motion; however, the undersigned finds that the reasoning set forth in a federal court in the Central District of California, where the district judge found defendant's motion to dismiss for nonexhaustion of administrative remedies, filed some ...