The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION PROCEED ON CLAIMS FOUND TO BE COGNIZABLE and DISMISSAL OF CERTAIN CLAIMS (Doc. 13) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
I. Findings and Recommendations
Plaintiff Lavell Player ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint onJanuary 23, 2007, in the Northern District of California. (Doc. 1.) Plaintiff's case was transferred to the Eastern District of California on September 12, 2007. (Id.) Plaintiff filed a first amended complaint on January 7, 2008. (Doc. 11.) On November 6, 2008, the Court ordered that Plaintiff either file a second amended complaint or notify the Court of willingness to proceed only on claims found to be cognizable. (Doc. 12.) Plaintiff filed a second amended complaint on December 9, 2008. (Doc. 13.) Plaintiff's second amended complaint is presently before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
B. Summary of Plaintiff's Second Amended Complaint
Plaintiff is currently a state prisoner at Kern Valley State Prison in Delano, California. Plaintiff was formerly imprisoned at Corcoran State Prison ("CSP") in Corcoran, California, where the acts he complains of occurred. Plaintiff names the following defendants: Correctional officers B. Johnson and Proulx; chief deputy warden L. Watson, captain M. Miller; captain IA S. Fields; CC II G. Rangel; Lieutenant J. Kavanaugh; and D. Oftedhal, classification service representative at Delano state prison. Plaintiff also names R. Campbell in the body of his complaint.
Plaintiff alleges the following. On January 17, 2006, during chow release, Plaintiff and defendant C/O B. Johnson exchanged verbal insults. (Doc. 13, p. 4:1-5.) Defendant Johnson ordered all inmates to get down. (Id., p. 4:7-10.) Plaintiff was then placed in an arm lock and escorted from the building by defendants C/O Proulx and Johnson. (Id., p. 4:10-18.) While escorting Plaintiff, defendant Johnson without provocation launched Plaintiff headfirst into the pavement, resulting in impact to the left side of Plaintiff's head, shoulder, and knee. (Id., p. 4:19-25.) Defendant Johnson declared that Plaintiff had threatened Johnson and escorted Plaintiff to the clinic. (Id., p. 4:25-28.)
Defendant Lieutenant Kavanaugh witnessed this incident occur because he was supervising over an unrelated disturbance. (Id., p. 5:1-5.) He assisted defendant Johnson and Proulx in placing Plaintiff in a holding cage by holding the door. (Id., p. 5:5-6.) Plaintiff was asked by defendant Kavanaugh if it was over, Plaintiff responded yes, and was released back to his cell. (Id., p. 5:7-10.) Later that evening, Plaintiff was placed into administrative segregation unit ("ASU") for threatening staff. (Id., p. 5:11-19.) On January 20, 2006, defendant Captain Miller issued a signed 114-D lock-up order notice for Plaintiff's retention in ASU. (Id., p. 5:20-21.) On January 26, 2006, Plaintiff was summoned to conference room in ad-seg for a video conference regarding alleged excessive force by staff. (Id., p. 5:25-28.) On February 1, 2006, Plaintiff appeared before an institutional classification committee ("ICC") and was retained in ad-seg pending a forthcoming disciplinary hearing. (Id., p. 6:7-12.)
On February 13, 2006, Plaintiff was assigned C/O Campbell as his investigative employee. (Id., p. 6:13-15.) Campbell gave Plaintiff his report, which Plaintiff objected to because Campbell did not interview all the witnesses requested by Plaintiff. (Id., p. 6:15-17.) Campbell stated that he was instructed not to do so by Lieutenant Kavanaugh. (Id., p. 6:17-18.) Plaintiff appeared at his disciplinary hearing on March 1, 2006, and was found guilty of conduct that could lead to violence, which Plaintiff objected to. (Id., p. 7:1-8.) Plaintiff was retained in ad-seg per order of defendant CCII Rangel for threatening staff. (Id., p. 7:9-13.)
On March 8, 2006, Plaintiff made another appearance before an ICC panel composed of defendants Chief Deputy Warden L. Watson, CCII G. Rangel, Captain M. Miller, CC I Felder, and R. Campbell. (Id., p. 7:14-16.) Plaintiff contended that he was being held in ad-seg on trumped up charges in retaliation for Plaintiff filing staff misconduct charges against defendant C/O B. Johnson. (Id., p. 17-22.) On April 3, 2006, before another ICC panel, Plaintiff was informed that he was to be transferred to another institution. (Id., pp. 7:27-8:2.) Plaintiff was released from ad-seg on April 12, 2006 to 3B Corcoran facility, a level 3-custody facility. (Id., p. 8:8-10.) Because Plaintiff is a level 4 custody inmate, Plaintiff would not qualify for any programs and would ultimately be transferred. (Id., p. 8:10-14.) Plaintiff was endorsed for transfer to Calipatria State Prison, a 270 design level 4 facility. (Id., p. 8:22-23.)
On January 17, 2007, Plaintiff was endorsed for transfer to Substance Abuse Treatment Facility by defendant Oftedhal, a 180 lockdown design prison where Plaintiff was not ...