The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE OR TO FILE THIRD AMENDED COMPLAINT (Doc. 32) RESPONSE DUE WITHIN 30 DAYS
Plaintiff David Poe ("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 Pleasant Valley State Prison in Coalinga, California at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff names D. Huckabay (sergeant), J. L. Scott (lieutenant), Yates (warden), E. H. Beels (captain), Galvan (sergeant), W. K. Myers (lieutenant), R. Milan (officer), J. M. Mattingly (officer), Franco (officer), Soares (officer), M. Jiminez (officer), T. Bullock (officer), K. Witt (officer), D. D. Rose (officer), Carminati*fn1 (officer), White (officer), D. Hall (licensed vocational nurse), and J. Carr (licensed vocational nurse)as defendants. For the reasons set forth below, the Court finds that Plaintiff's Second Amended Complaint states some cognizable claims and orders Plaintiff either to notify the Court of his willingness to proceed only on the claims found to be cognizable, or to file an amended complaint curing the deficiencies in his non-cognizable claims.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the Original Complaint in this action on February 28, 2007. (Doc. #1.) Plaintiff's Original Complaint was screened and dismissed on December 10, 2008. (Doc. #20.) Plaintiff was given leave to file an amended complaint. Plaintiff filed his First Amended Complaint on June 1, 2009. (Doc. #28.) Plaintiff, on his own initiative and before the Court had screened his First Amended Complaint, filed a Second Amended Complaint on July 14, 2009. (Doc. #32.) This action proceeds on Plaintiff's Second Amended Complaint.
Plaintiff claims that correctional officers used excessive force against him in violation of the Eighth Amendment after Plaintiff accidently hit a correctional officer. On September 7, 2005, Plaintiff was sweeping the floor at PVSP. Plaintiff was suddenly startled by the sound of people rushing behind him. Plaintiff claims that he instinctually turn around and swung blindly toward the sound of the onrushing persons. Plaintiff then realized that he had struck correctional officer Fountain. Correctional officer D. Do ordered Plaintiff to get on the ground. Plaintiff was handcuffed and Plaintiff was escorted away by Defendants Huckabay, Milan, Mattingly, Franco, Soares, Jiminez, Bullock, Witt, Rose, Carminati, White, and Deathridge*fn2 . The officers punched, kicked, slapped, spit on, pushed, and shoved Plaintiff as they escorted him. As the group exited the dayroom area, Defendant Huckabay told his subordinate officers to "[b]ust his head on the steal door!!" (Compl. ¶ 12.) Plaintiff was then rammed head first into the steel door. Officers continued beating Plaintiff with their batons, fists, and feet. When Plaintiff was brought out of the building, Defendant Galvan and other unknown officers joined in on beating Plaintiff.
Defendant Huckabay eventually ordered officers to place leg restraints on Plaintiff and that a gurney be brought out. Plaintiff was then thrown to the ground by Defendants Franco and Milan. After leg restraints were placed on Plaintiff, Defendant Franco stood on top of the leg restraints to intentionally cause extreme pain from the pressure on Plaintiff's ankle. Plaintiff began screaming for help. Plaintiff alleges that by this point, J. L. Scott was present and observed Plaintiff's beating but did not intervene. Plaintiff was placed on the gurney and the beatings continued while he was escorted to the medical clinic.
Defendant D. Hall conducted Plaintiff's medical examination. Plaintiff claims that Hall only documented some of the many injuries suffered by Plaintiff. After the medical evaluation, Plaintiff was transported to the administrative segregation unit ("ASU"). During transport, Defendant Soares rode in the back of the cart with Plaintiff and struck him in the eye several times. Upon arrival at the ASU, Plaintiff was examined again by Defendant J. Carr. Plaintiff complains that Carr did not fully document Plaintiff's comments and injuries.
Plaintiff was eventually housed with inmate Garcia. Garcia began to plead with ASU nursing staff to provide urgent medical care for Plaintiff because his legs were grotesquely swollen. Plaintiff was examined by Carr on September 7, 2005, but Plaintiff did not see a doctor. Plaintiff continued to complain to medical personnel about dizziness, headaches and other pains in his head.
Plaintiff filed numerous complains about the incident to Defendant Yates, requesting investigations and appropriate action be taken. Plaintiff also claims that Defendants E. H. Beels and W. K. Myers, along with Huckabay, authored and ...