The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS; (2) DISMISSING DEFENDANTS PURSUANT TO FED.R.CIV.P. 4(m); (3) ORDERING REMAINING DEFENDANTS TO FILE AN ANSWER TO THE REMAINING CLAIMS [Doc. Nos. 63, 95]
Plaintiff, an inmate currently incarcerated at California State Prison located in Corcoran, California, and proceeding pro se, has filed a First Amended Complaint ("FAC") pursuant to 42 U.S.C. § 1983 [Doc. No. 59]. Defendants Ryan, Ochoa, Jimenez, Zills, Schommer, Ortiz, Rodiles, Mejia, Sandoval, Wells, Castaneda, Cosio, Flores, Ritter, Bell, Anadalon, Harmon, Duarte, Stratton, Price, Martinez, Valenzuela and Rangel have filed Motions to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV. P. 12(b)(6) [Doc. Nos. 63, 95].*fn1 In addition, Defendant Pegues has filed a Notice of Joinder and Joinder to Defendants' Motions to Dismiss Plaintiff's First Amended Complaint [Doc. No. 64].
Because Defendants filed two Motions to Dismiss, one was filed after a number of newly named Defendants had been served, Plaintiff has filed two Oppositions [Doc. Nos. 80, 96] to which Defendants have filed a Reply [Doc. No. 83].
I. PLAINTIFF'S FACTUAL ALLEGATIONS
In 2005 Plaintiff was housed at Centinela State Prison which is located in Imperial County. (See FAC at 1.) On June 10, 2005, Plaintiff was awakened by his cell door being pushed open and saw Defendants Schommer and Ortiz standing in front of his cell. (Id. at ¶¶ 1-2.) Defendant Schommer told Plaintiff it was "count time" and Plaintiff informed Defendant Schommer that he had fallen asleep because he was taking pain medication. (Id. at ¶¶ 3-4.) Defendants Schommer and Ortiz walked away from Plaintiff's cell as Defendants Torres and Mejia approached. (Id. at ¶¶ 6-7.) Defendant Wells closed Plaintiff's cell door from the control tower. (Id. at ¶ 8). Defendants Schommer, Ortiz and Torres told Defendant Wells to reopen Plaintiff's cell. (Id. at ¶ 12.) Defendants Schommer and Torres entered Plaintiff's cell and began to simultaneously use oleresin capsicum (also known as " pepper spray") on Plaintiff who was not resisting. (Id. at ¶¶ 14-18.)
While Plaintiff was shielding his face, he was struck on the lower left leg with a baton by either Defendant Torres or Schommer and then struck on the right temple by Defendant Torres. (Id. at ¶¶ 20-21.) Defendant Castaneda then entered Plaintiff's cell and placed Plaintiff in handcuffs. (Id. at ¶ 22.) Defendant Castaneda then took Plaintiff to the shower in order to "decontaminate" Plaintiff from the pepper spray but instead of using cold water, which is required by regulations, Defendant Castaneda used hot water which caused Plaintiff's skin to burn. (Id. at ¶¶ 23- 25.) Defendant Zills entered the shower area and began pushing Plaintiff to the exit of the housing unit by his handcuffs. (Id. at ¶¶ 27-28.) While exiting through the corridor area, Defendant Zills "ran Plaintiff face first into the corridor's brick wall." (Id. at ¶ 29.) Plaintiff was then "slammed to the ground" by Defendants Zills and Torres. (Id. at ¶ 31.) As Defendant Zills held Plaintiff, "Defendants Torres, Ortiz and Rodiles proceeded to take turns striking Plaintiff in the head and body utilizing their state-issued side handle batons." (Id. at ¶ 32.) As Defendant Zills continued to hold Plaintiff, Defendant Mejia "walked over and kicked Plaintiff." (Id. at ¶ 35.) In addition, Defendant Sandoval began "viciously [kicking] Plaintiff" in his chest "with enough force that [caused] Plaintiff to temporarily stop breathing." (Id. at ¶ 37.) Defendant Castaneda began to yell in Spanish "that's it." (Id. at ¶ 39.) Plaintiff claims that Defendants Castaneda, Jimenez, Bailey, Cosio, Bell and Andalon "observed Plaintiff being maliciously and wantonly beaten" but failed to intervene. (Id. at ¶ 40.)
Defendants placed Plaintiff in the shower to remove any signs of blood and then proceeded to take Plaintiff to the medical clinic by Defendants Torres, Jimenez and Bell. (Id. at ¶ 42-44.) Plaintiff claims that Defendants Jimenez and Torres "intentionally [delayed] Plaintiff from receiving medical evaluation and treatment" by keeping Plaintiff in a holding cell for two hours inside the medical clinic. (Id. at ¶¶ 46-47.) Plaintiff was later examined by medical staff and it was determined that he should be seen by the prison's physician. (Id. at ¶ 50.) While Plaintiff was waiting to be seen by the prison's physician he claims that Defendants Harmon and Duarte made "obscene/vulgar statements directed at Plaintiff." (Id. at ¶¶ 53-54.) Plaintiff was examined by "Doctor Naz," the prison's physician, who "sutured Plaintiff's three scalp lacerations and one left leg laceration and evaluated plaintiff as having a possible liver rupture and chest wall contusion." (Id. at ¶ 56.) Defendants Stratton and Mejia videotaped Plaintiff's injuries. (Id. at ¶ 57.) Defendants Ryan, Ochoa and Pegues arrived soon after and asked Plaintiff's questions regarding the incidents that led to his injuries. (Id. at ¶ 58.)
Doctor Naz recommended that Plaintiff be immediately transferred to Pioneer Memorial Hospital ("PMH") due to his potentially "life-threatening injuries." (Id. at ¶ 60.) Defendants Ryan, Ochoa, Pegues and Stratton "refused to act or expedite Plaintiff's transfer to PMH and instead intentionally allowed Plaintiff's suffering condition to deteriorate." (Id. at ¶ 61.) At approximately 4:34 a.m. on June 11, 2005, Plaintiff was transferred to the PMH emergency room. (Id. at ¶ 63.) Plaintiff underwent medical examinations and testing where it was determined that he suffered from a "punctured and collapsed right lung, a minimum of four broken right ribs, three severe scalp lacerations, one left leg laceration, and multiple abrasions, bruising and swelling throughout Plaintiff's body." (Id. at ¶ 65.) Plaintiff claims Defendants Jimenez, Torres, Schommer, Ortiz, Zills, Rodiles, Wells, Flores and Ritter submitted "fabricated disciplinary reports against Plaintiff" to "conceal" their own misconduct. (Id. at ¶¶ 68-70.) Defendant Flores submitted a report indicating that he had discovered an inmate manufactured weapon in Plaintiff's cell which Plaintiff claims is a false accusation. (Id. at ¶ 71.)
Plaintiff was charged with disciplinary violations including assault on staff, battery on staff, battery on a Peace Officer with a weapon and attempted murder of a Peace Officer. (Id. at ¶ 73.) Plaintiff also claims that his property was taken by Defendants in retaliation for Plaintiff's allegations against Defendants. (Id. at ¶¶ 93-95.) To date, Plaintiff has yet to receive a disciplinary hearing on the rules violation report that was issued to him charging Plaintiff with attempted murder of a Peace Officer. (Id. at ¶ 100.) However, Plaintiff does indicate that he is being temporarily housed at Calipatria State Prison "pending court proceedings in Imperial County Superior Court." (Id. at 16, fn. 13.)
II. DEFENDANTS'MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(6)
A. Standard of Review pursuant to FED.R.CIV.P.12(b)(6)
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (internal quotation marks omitted).
Still, every complaint must, at a minimum, plead "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Weber v. Dept. of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). Facts which are alleged in the complaint are presumed true, and the court must construe them and draw all reasonable inferences from them in favor of the plaintiff. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).
B. Eighth Amendment allegations - Count "1"
1. Claims against Defendant Ritter
Defendant Ritter moves to dismiss the Eighth Amendment claims against him found in Count "1" of Plaintiff's First Amended Complaint for failing to state a claim upon which relief can be granted pursuant to FED.R.CIV.P. 12(b)(6).
"After incarceration, only the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eight Amendment." Whitely v. Albers, 475 U.S. 312, 319 (1986). To assert an Eighth Amendment claim for deprivation of humane conditions of confinement, a prisoner must allege facts sufficient to fulfill two requirements: one objective and one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under the objective requirement, the prisoner must allege facts sufficient to show that the prison official's acts or omissions deprived him of the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Farmer, 511 U.S. at 834. This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 832; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981).
Under the subjective requirement, the prisoner must allege facts that show that the defendant acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 303 (1991). "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; Wilson, 501 U.S. at 302-303.
In Plaintiff's First Amended Complaint he alleges that Defendant Ritter "photographed Plaintiff's external injuries" after he had been taken to the prison infirmary. (FAC at ¶ 9.) Later Plaintiff alleges that Defendant Ritter "submitted fabricated disciplinary reports against Plaintiff with a specific intent to retaliate and harm Plaintiff." (Id. at ¶ 68.) Based on these allegations, there is simply no factual basis to support a claim for deliberate indifference by Defendant Ritter for merely photographing Plaintiff's injuries.
In Plaintiff's Opposition dated January 23, 2009, Plaintiff argues that "subsequent to Defendant Ritter's arrival at the prison infirmary and observation of Plaintiff's gross physical condition, Defendant Ritter's official obligation and responsibility was to take reasonable measures to guarantee Plaintiff's safety." (See Pl.'s Opp'n at 4.) However, the facts alleged by Plaintiff do not demonstrate that Defendant Ritter played any role in inhibiting or delaying his medical treatment. Nor does Plaintiff provide any facts that would demonstrate that the actions of Defendant Ritter caused him any further harm. The only allegation that Plaintiff refers to is the alleged fabricated disciplinary report that Defendant Ritter allegedly prepared eight months after the incident. (See FAC at ¶ 72.) However, Plaintiff later admits that he has not been subjected to a disciplinary hearing as a result of these alleged fabricated disciplinary reports. (Id. at ¶ 100.)
Thus, Defendant Ritter's Motion to Dismiss the Eighth Amendment claims against him pursuant to FED.R.CIV.P. 12(b)(6) is GRANTED without leave to amend.
2. Claims against Defendants Harmon and Duarte
Defendants Harmon and Duarte also seek dismissal of all claims against them found in Count "1" of Plaintiff's First Amended Complaint. In Plaintiff's First Amended Complaint, the allegations against these Defendants are that they made "obscene/vulgar statements directed at Plaintiff that caused Plaintiff further physical and emotional distress" while he was waiting for the prison's physician to examine him. (See FAC at ¶ 54.) ...