The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE AN AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN 30 DAYS (Doc. 1)
Plaintiff Santos A. Villegas ("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 is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at the California Correctional Institution in Tehachapi, California ("CCI-Tehachapi") at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff names L. L. Schulteis (chief deputy warden), S. Hopkins (correctional officer), M. Soto (correctional officer), G. Zucker (correctional officer), F. Rodriguez (correctional officer), F. Martinez (correctional officer), A. Stolworthy (correctional officer), D. Walker (correctional officer), N. Minlschmidt (registered nurse), and Knight*fn1 (correctional officer) as defendants. For the reasons set forth below, Plaintiff will be given the opportunity to file an amended complaint, or to notify the Court of his willingness to proceed only on the claims found to be cognizable in this order.
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. P. 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. P. 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)).
On April 26, 2008, Plaintiff was in his cell and given his dinner tray by Defendant Zucker. (Compl. ¶¶ 1-2.) Plaintiff told Defendant Zucker that he was missing his tortillas, to which Defendant Zucker replied, "That's a fucken (sic) Mexican for you." (Compl. ¶ 2.) Plaintiff again asked Defendant Zucker if he was going to get him his tortillas and Defendant Zucker replied, "Didn't I fucken (sic) say I was gonna get them for you. You stupid fucken (sic) Mexican." (Compl. ¶ 4.) The verbal exchange continued and Defendant Zucker threw Plaintiff some tortillas through the tray slot. (Compl. ¶ 6.)
When it came time to pick up the dinner trays, Defendant Rodriguez opened Plaintiff's tray slot and as Plaintiff set his tray on it Defendant Rodriguez jumped back and yelled, "He's trying to slice me, he's trying to slice me." (Compl. ¶ 7.) Plaintiff ran to the back of his cell and grabbed his blanket in anticipation of being pepper sprayed. (Compl. ¶ 8.) Defendant Rodriguez sprayed Plaintiff through the tray slot and Defendant Zucker arrived and stated, "Wait till the door opens, you wanna slice my partner?" (Compl. ¶ 9.) Defendant Soto also arrived with Defendants Martinez and Knight. (Compl. ¶ 10.) Defendant Soto remarked, "You again?" referring to a prior incident. (Compl. ¶ 12.) Defendant Soto asked Plaintiff if he was going to cuff up and Plaintiff agreed. (Compl. ¶ 13.) Plaintiff cuffed up, got on his knees, and then was socked in the back of his head while Defendant Zucker yelled, "Stop resisting, stop resisting." (Compl. ¶ 14.) Plaintiff continued to be socked in the head and body and after Plaintiff was kneed in the back Defendant Soto ordered Plaintiff to be put in ankle chains. (Compl. ¶ 15.)
Plaintiff was escorted out of his cell and Defendant Minlschidt arrived with a wheel chair. (Compl. ¶ 16.) Plaintiff was then slammed against the wall, slammed to the floor, kicked in the back and Plaintiff fell to the floor, injuring his nose and mouth. (Compl. ¶ 17.) Plaintiff was taken to the dining hall where his clothing was cut off and Plaintiff was ordered to get on his knees by Defendant Martinez. (Compl. ¶ 18.) Plaintiff's ankle chains and cuffs were removed and Plaintiff was pushed into a cage. (Compl. ¶ 18.) Defendant Martinez gave Plaintiff a towel to wipe up the blood so that the nurse would not know he was bleeding or if it was pepper spray. (Compl. ¶¶ 18-19.)
Defendant Minlschmidt arrived and Plaintiff was intimidated from reporting anything because Defendant Martinez was standing behind her. (Compl. ¶ 21.) After Defendant Minlschmidt asked Plaintiff what happened Plaintiff told her that he was beaten by the correctional officers. (Compl. ¶ 21.) Defendant Minlschmidt did not write down Plaintiff's story in her notes. (Compl. ¶ 21.) After Defendant Minlschmidt left, Defendant Martinez said "you fucked up" and left. (Compl. ¶ 22.)
After 20-25 minutes, Defendant Zucker arrived and stated, "Oh, you wanna play like that?". (Compl. ¶ 23.) Defendant Zucker held up two papers and said:
I have two reports, one saying we didn't find a weapon, and this one says we found a weapon. Now when they come to video tape you, you better say you don't want to participate and you have nothing to say, or else you're going down for life 'cause we got a weapon.
(Compl. ¶ 23.) Defendant Hopkins later arrived with the camera and asks Plaintiff, "You know what to say right?" (Compl. ¶ 26.) Plaintiff repeated what Defendant Zucker told Plaintiff to say.
Plaintiff was escorted back to his cell by Defendant Knight after the interview. (Compl. ¶ 31.) Plaintiff suspected that some of his property was missing and asked Defendant Knight where his property was. (Compl. ¶ 31-32.) Plaintiff was told that he was lucky that he was getting anything. (Compl. ¶ 32.) Defendants Zucker, Rodriguez, Martinez, Soto, Stolworthy, Walker, and Knight submitted a false complaint to the district attorney's office accusing Plaintiff of attempted battery on a peace officer. (Compl. ¶ 33-34.)
Plaintiff alleges that Defendant Minlschmidt generated an incomplete medical form and "chose to aid and abet the conspiracy when she chose not to treat my injuries properly and not my fill in my injuries/statement." (Compl. ¶ 35.) Plaintiff wrote a letter to internal affairs seeking an investigation and a transfer because of the harassment. (Compl. ¶ 37.) ...