The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (Docs. 1, 17) OBJECTIONS DUE WITHIN THIRTY DAYS
I. Findings and Recommendations
Plaintiff Garrison S. Johnson ("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 complaint onMay 8, 2008. (Doc. 1.) On February 3, 2009, the Court issued an order requiring Plaintiff to either file an amended complaint or notify the court of willingness to proceed only on claims found to be cognizable. (Doc. 13.) On February 24, 2009, Plaintiff notified the Court that he did not wish to file an amended complaint, but was unwilling to proceed only on claims found to be cognizable and wished to file objections. (Doc. 17.) Based on Plaintiff's filing, the Court issues the following Findings and Recommendations.
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 Complaint
Plaintiff is currently a state prisoner at Kern Valley State Prison in Delano, California. Plaintiff was formerly imprisoned at the California Correctional Institution ("CCI") in Tehachapi, California, where the acts he complains of occurred. Plaintiff names the following defendants: John Dovey, Director of California Department of Corrections ("CDCR"); W. J. Sullivan, CDW at CCI; F. Gonzalez, CDW at CCI; M. Carrasco, AW at CCI; D. Zanchi, Captain; L. Magallanes, lieutenant; Correctional Officers ("C/O") A. Dunnahoe, V. Ybarra, G. Ybarra, S. Cunningham, R. Curliss, B. Medrano, J. Gonzales, A. Holguin, J. Velasquez, and K. Cannon; and K. Powell, registered nurse. (Doc. 1, pp. 5-6, ¶¶ 5-21(a).)
Plaintiff alleges the following. Plaintiff had filed a lawsuit in 1995 that led to the abolishment of CDCR's practice of using racial segregation in double man cells. Plaintiff was transferred from Corcoran State Prison to CCI in January of 2006. The CCI guards discovered Plaintiff's role in the 1995 lawsuit. On March 17, 2007, defendant Dunnahoe removed Plaintiff from his cell while Plaintiff was handcuffed. Dunnahoe then slammed Plaintiff into the ground without provocation. Defendant V. Ybarra then began striking Plaintiff with her baton. Defendants Cunningham and Medrano emptied their pepper spray canisters into Plaintiff's face and eyes. Defendant Holguin pushed Plaintiff's head twice into the wall. (Doc. 1, p. 9, ¶¶ 28-31.)
After Plaintiff was placed in a holding cell, Holguin ordered Plaintiff to put his cuffed hands through the foodport in order to remove the handcuffs. Holguin then squeezed the handcuffs extremely tight around Plaintiff's wrists and began bending the wrists. When Plaintiff cried out in pain, defendant Velasquez emptied his pepper spray canister into Plaintiff's eyes. Plaintiff suffered head trauma and pain, a swollen left eye, swollen wrists, and vision impairment. (Id., pp. 9-10, ¶¶ 32-34.)
After the incident, defendants Curliss and J. Gonzales ordered Plaintiff to strip naked and hosed the pepper spray from his eyes. Plaintiff was not permitted to shower the rest of his body for three days, leaving Plaintiff's entire body "on fire." Plaintiff informed defendant Powell that his hands were swollen from the too-tight cuffs and that his body was burning from the pepper spray. Powell failed to summon immediate medical care. (Id., pp. 10-11,¶¶ 36-37.)
Defendants Dunnahoe, V. Ybarra, and G. Ybarra filed a false rule violation and crime incident report ("RVR") that claimed Plaintiff struck Dunnahoe in the chest and grabbed defendant Holguin's arm through the foodport. Plaintiff was placed in ad-seg for false charges of battery on peace officer. On April 4, 2007, defendant Cannon told other inmates that Plaintiff was the inmate who sued CDCR which required CDCR to racially integrate its double man cell housing of prisoners. (Id., pp. 11-12, ¶¶ 40-42.)
Plaintiff alleges violations of the First Amendment, Eighth Amendment, Equal Protection Clause, section 1985(3) conspiracy, and the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994. (Id., pp. 13-16, ¶¶ 47-63.) Plaintiff also alleges state claims of failure to summon medical care, battery, professional negligence, negligent infliction of emotional distress, fraud and negligent misrepresentation. (Id., pp. 16-20, ¶¶ 64-80.)
Plaintiff seeks compensatory damages, punitive damages, injunctive relief, and demands trial by jury. (Id., pp. 20-21.)
Plaintiff alleges that defendants retaliated against Plaintiff for filing a lawsuit by beating him and placing him in ad-seg for a false rules violation report. (Doc. 1, pp. 12-13, ¶¶ 44-45.) Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) ...