The opinion of the court was delivered by: Stephen V. Wilson United States District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Second Amended Complaint ("SAC"); the Magistrate Judge's Report and Recommendation ("R&R"); the Objections to the R&R filed by Defendants on March 2, 2009; and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.
Defendants incorrectly argue that the Magistrate Judge failed to address whether Plaintiff pled the fifth element of retaliation, namely that "the action did not reasonably advance a legitimate correctional goal." (Objections at 2-3.) The R&R states: "[A]ssuming that Kimbrough's accusations are in fact false . . . the complaint sufficiently alleges that they did not advance any legitimate correctional goal." (R&R at 11.)
Defendants also argue that false accusations against a prisoner, placement in administrative segregation, and failure to investigate a prisoner's complaints cannot form the basis of a retaliation claim because a prisoner has no constitutional right to be free from false accusations or administrative segregation, or to have his complaints investigated.*fn1 (Objections at 3-6.)
The Ninth Circuit has rejected Defendants' argument. In Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), the Court held that "prisoners may still base retaliation claims on harms that would not raise due process concerns." Id. at 269 (addressing allegation that false charges against prisoner were made in retaliation for exercise of First Amendment rights). The Ninth Circuit reaffirmed that holding in Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). In Austin, the Court reversed dismissal of a retaliation claim alleging that the prisoner was placed in administrative segregation as a result of false charges made in retaliation for filing grievances. Id. The Objections do not cite or distinguish these cases, and are overruled.
b. Inadequate Medical Care
Plaintiff alleges that on January 24, 2007, after the alleged attack by Defendants Zaragoza and Wood, Defendants Contreras and Buendia "did absolutely nothing to treat Plaintiff's injuries and refused to document his injuries and how he had received the injuries." (SAC at 14-15.) Plaintiff also alleges that on March 27, 2007, Defendant Buendia refused to provide him with his medications. (Id. ¶ 10.)
The Objections impermissibly ignore the first allegation of inadequate medical care and, therefore, argue that the second allegation constituted an "isolated incident of neglect." (Objections at 6-7.) As to the second allegation, Plaintiff alleges deliberate indifference, not neglect. Plaintiff alleges that Buendia denied him medications saying "I heard about you and MTA Kimbrough, I'm going to say you refused your medications and was sexually inappropriate." (SAC ¶ 10.)
To overcome the Plaintiff's allegations, the Objections argue that the court should accept as true the grievance documents attached to the complaint. In general, exhibits attached to a complaint may be considered on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). In the context of prisoner civil rights, however, the Central District of California's form complaint used by Plaintiff requests that a prisoner "attach copies of papers related to the grievance procedure" for purposes of exhaustion of administrative remedies.*fn2 (SAC at 2.) The SAC cites to the grievance documents to demonstrate that Plaintiff exhausted his remedies and put Defendants on notice of his complaints. (SAC, attachment at 1, 18 (index of "state remedies exhausted".) Under these circumstances, and in light of Plaintiff's pro se status, this court declines to accept the truth of the matters asserted in exhibits related to exhaustion of remedies for purposes of analyzing Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
To the extent the Objections argue that Defendants are entitled to qualified immunity because a prisoner has no constitutional right to be free from false accusations, the argument has no merit as discussed above. (Objections at 9.)
Defendants further argue that they are entitled to qualified immunity for Plaintiff's excessive force claims. (Id. at 9-10.) Plaintiff alleges excessive force claims against Zaragoza, Wood, Plascencia and Fernandez. (R&R at 5.) Plaintiff alleges that, on January 24, 2007, Zaragoza grabbed Plaintiff by the hair and slammed his head against the wall. When Plaintiff regained consciousness, Zaragoza was still pressing against Plaintiff's back and neck while Wood held Plaintiff's legs and feet to the ground. (Id. at 3.) Plaintiff alleges that, on July 25, 2007, Plascencia threw a tray of food in Plaintiff's face and Fernandez sprayed a burning chemical on Plaintiff's body. (Id. at 4.) Plaintiff alleges that, in each incident, force was used for no reason.
Defendants argue that they are entitled to qualified immunity based on the Department of Corrections policy governing use of force. The regulation defines excessive force as "[t]he use of more force than is objectively reasonable to accomplish a lawful purpose," and defines unnecessary force as "[t]he use of force when none is required or appropriate." 15 Cal. Code Regs. § 3268(a)(2)-(3). The regulation further states that "[e]mployees may use reasonable force as ...