The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Valentine Underwood ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 17, 2008. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at California Correctional Institution ("CCI"). Plaintiff alleges violations under the First Amendment, the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment, in addition to state law claims, against M. Knowles, Warden at Kern Valley State Prison ("KVSP"); T.S. Arlitz, Associate Warden at KVSP; Captain S. Frauenhein; Lieutenant J. Whitehead; Senior Hearing Officer D. Schroeder; Sergeant S. Lantz; Correctional Officer ("CO") S. Martin; CO M. Northcutt; CO D. Caviness; CO A. Trajillo; CO P. Truitt; CO J. Hart; CO Caudillo; CO Playa; CO N. Meza; CO J. Fambrough; CO J. Urbano; Medical Technician Assistant ("MTA") Ethridge; MTA Kurtz; Dr. Akano; Chief Inmate Appeals Branch N. Grannis; Appeals Coordinator C. Pfeiffer at KVSP; Correctional Counselor ("CC") J. Flory at KVSP; CC Torres at CCI; and CC Chapman at CCI. For the reasons set forth below, Plaintiff is ordered either 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 within thirty days.
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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
Plaintiff's allegations arise from incidents that occurred while he was incarcerated at KVSP and CCI. On October 2, 2006, at KVSP, Plaintiff was placed in administrative segregation ("AdSeg"). Plaintiff alleges that Defendant Hart called him a "nigger" before placing him in Ad-Seg. (Compl. Due Process p. 1 ¶ 1, Retaliation p. 1 ¶1 .) On October 4, Plaintiff filed an inmate appeal against Defendant Hart for calling him a "nigger." (Compl. Due Process p. 1 ¶1.) On October 24, 2006, Defendant Hart issued Plaintiff a general chrono, stating that his TV was being confiscated for having been altered. Plaintiff promptly filed another inmate appeal against Defendant Hart for confiscating his TV.
After being released from Ad-Seg, Plaintiff found that some of his personal property had disappeared while he was in Ad-Seg. On November 15, 2006, Plaintiff filed an inmate appeal against Defendant Hart and against Defendants Caudillo and Playa, because they were identified as officials responsible for taking an inventory of his property. On November 20, 2006, Plaintiff filed another inmate appeal against Defendant Hart for making threatening statements against him.
Plaintiff alleges that on November 21, 2006, Defendants Northcutt and Martin approached Plaintiff because they wanted to know why Plaintiff had been talking to Defendant Lieutenant Whitehead the previous day. Plaintiff told Defendants Northcutt and Martin that he told Defendant Whitehead he was having difficulty with some of the officers, including Defendants Northcutt and Martin, since filing an inmate appeal against Defendant Hart. Defendant Northcutt then pepper sprayed him, and hit him in the face with the pepper spray can. Defendant Martin also struck Plaintiff repeatedly with his baton. Plaintiff tried to hit back, and then laid down on the floor on his stomach. Defendants Northcutt and Martin continued to kick and punch Plaintiff. Several other correctional officers rushed in and struck Plaintiff as well. Plaintiff was pepper sprayed again, had a bag pulled over his head, and then was handcuffed.
Defendant Whitehead instructed two officers to escort Plaintiff to the clinic, where Dr. Dileo had Plaintiff's head, left hand, and ribs x-rayed. Dr. Dileo also cleaned the bite wound on Plaintiff's right hand, gave him a tetanus shot, and sutured the area above Plaintiff's right eye. Dr. Dileo gave Plaintiff some painkillers and a vest to wear over his rib area. Plaintiff alleges that he also had a swollen left hand, fingers and wrist; lumps all over his head; scratches and abrasions on his lower back; and bruises all over his body. He also bled from the cut above his right eye, and from his nose, and right hand. Plaintiff alleges that he suffered from blurred vision, lower back pain, and nose bleeds as a result of the assault.
Plaintiff alleges that Defendant Flory incorrectly stated that Plaintiff kneed Defendant Flory. Plaintiff also alleges that Defendant Flory tried to stop Defendant Northcutt from hitting Plaintiff with a pepper spray can. Plaintiff alleges that Defendants Carviness, Lantz, Trujillo, Truitt, and Fambrough also kicked and struck him. Plaintiff filed an inmate appeal on November 29, 2006, regarding the attack on November 21, 2006. The appeal was also ultimately rejected as being untimely. Plaintiff was subsequently found guilty of battery on a peace officer, and he filed an appeal for being denied a fair hearing regarding the November 21, 2006 incident.
Plaintiff alleges that for several days after November 24 or 25, he asked for medical care because his injuries caused him pain, but did not receive any medical care except for some painkillers from Defendant Ethridge on November 29, 2006. Plaintiff was seen by Defendant Dr. Akano on December 13, 2006, at which time he told Defendant Akano that he was suffering from blurred vision, and lower back pain, and that the bite on his right hand had become infected. After examining Plaintiff, Defendant Akano told Plaintiff that he was in good health and prescribed painkillers and a cream. Plaintiff continued to seek additional medical care. On January 31, 2007, Defendant Akano prescribed Plaintiff some painkillers for his lower back pain, and ordered another x-ray of Plaintiff's back. On February 6, 2007, Plaintiff had his lower back x-rayed.
On March 13, 2007, Plaintiff was transferred to CCI. After Plaintiff arrived at CCI, he was referred to a nerve specialist for the bite on his right hand, an orthopedic surgeon for injuries to his right hand and right elbow, and for physical therapy for lower back pain. Plaintiff alleges that the superior medical care he has received at CCI proves that the medical care he received at KVSP was deficient.
Plaintiff alleges that Defendant Captain Frauenhein approached him on November 23 or 24, 2006, to see his injuries and to inform him that he would be transferred to avoid such an incident in the future. Plaintiff alleges that Defendant Frauenhein told him that Plaintiff's statement regarding the November 26, 2006, incident was consistent with other witnesses' statements.
Plaintiff alleges that Defendants Frauenhein and Tyson approached him on February 1, 2007, to inform him that they knew what had actually happened on November 21, 2006, but that he was to be placed in the Security Housing Unit ("SHU") for eight months for assaulting staff, after which he would be transferred elsewhere. Plaintiff alleges that the usual term for assaulting staff is twelve months to eighteen months, but Defendant Associate Warden Arlitz agreed with Defendants Frauenhein and Tyson, and gave him an eight month term, mitigated to six months.
On February 4, 2007, Plaintiff filed an inmate appeal after having his incoming and outgoing mail disappear, and after finding that Defendant Northcutt had been reassigned to the mail room after the November 21, 2006, incident.
Plaintiff also alleges that he submitted several inmate appeals, which were often screened out by Defendant Pfeiffer for being untimely or incomplete. Plaintiff alleges that the refusal to process his inmate appeals was a violation of his First Amendment right to petition the government for redress of his grievances.
On March 13, 2007, Plaintiff was transferred to CCI and was housed in the SHU. Plaintiff alleges that he was scheduled to be released from the SHU on May 21, 2007, but instead was placed in Ad-Seg pending space availability in general population. On July 6, 2007, Plaintiff was assigned to the Behavior Modification Unit ("BMU") by Defendants Torres and Chapman on the basis that he was guilty of battering a correctional officer at KVSP. He was not allowed to keep his personal property in BMU and had to it send it home. On October 6, 2007, Plaintiff was released from BMU into the general population and had to purchase all of his property, as he was not allowed to receive back any property that had been mailed home.
Plaintiff seeks damages, an injunction preventing future retaliation, removal of all negative documents from his central file regarding the November 21, 2006, attack, and restoration of his time credits, work group, and privilege groups. Plaintiff also asks that criminal charges be filed against Defendants, and that he be transferred to an institution of his choice.