The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE 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 Fred Price("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 is currently incarcerated at Salinas Valley State Prison in Soledad, California. However, the events described in Plaintiff's complaint occurred while Plaintiff was incarcerated at the California Correctional Institution in Tehachapi, California ("CCITehachapi"). Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments. Plaintiff names S.R. Cunningham, B. Gamblin, J. Hartman, Mullins, J. Mack, K.L. Large, E. Sailor, Linker, S. Hopkins, M. Carrasco, F. Gonzalez, N. Grannis, J. Ortega, D. Zanchi, and Muth as defendants. For the reasons set forth below, the Court finds that Plaintiff states cognizable claims against Defendants Cunningham and Mullins for deliberate indifference to a serious threat to Plaintiff's safety and use of excessive force in violation of the Eighth Amendment and Plaintiff states a cognizable claim against Cunningham for retaliation against Plaintiff's exercise of his First Amendment rights. Plaintiff's remaining claims are not cognizable. Plaintiff will be ordered to either notify the Court of his willingness to proceed only on the cognizable claims, or to file an amended complaint that cures the deficiencies identified 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).
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).
On November 9, 2006, Plaintiff was told by inmate Foster, Plaintiff's cell-mate at the time, that if he did not move, his life would be in danger. Plaintiff informed Defendants Cunningham and Mullins about the threat. Plaintiff requested a cell move but Cunningham and Mullins laughed at him and denied his request. On November 10, 2006, Plaintiff told John Doe #1 and #2 that he needed a cell move. Plaintiff was told to contact "the regulars."*fn1 (Compl. 9.) On November 11, 2006, Plaintiff asked Defendant Linker for a cell move and explained why. Defendant Sailor said he had a cell in another building and would look into it, but Plaintiff was never moved. Plaintiff also informed Defendant Gamblin about the threat, but Plaintiff was not moved.
On November 12, 2006, inmate Foster packed Plaintiff's property and told Defendant Sailor that Plaintiff needed a cell move because Plaintiff would be in danger. Plaintiff agreed. Defendant Sailor told them that there was nothing he could do. Plaintiff told Defendant Hartman about the problem, who in turn summoned Defendant Mack. Another inmate agreed to allow Plaintiff to move into his cell and Mack told Plaintiff that he would be moved.
Later that day, Plaintiff was still not moved from his cell. Foster "stated that Plaintiff thinks this prison life is a joke." (Compl. 11.) Foster grabbed a shiny object from between his mattress which prompted Plaintiff to start kicking and hitting the cell door. The control booth officer ordered Plaintiff to stop kicking the door. Cunningham and Hartman also arrived and ordered Plaintiff to stop kicking the door. Plaintiff attempted to explain that Foster had a weapon, but Cunningham told Plaintiff that he would not be moving. Plaintiff told Foster "to do what he said he would do" but Foster said he would do it later. Cunningham then opened the food slot and ordered Plaintiff to cuff up. Cunningham closed the food slot and nodded at inmate Foster. Foster then stood up and punched Plaintiff in the forehead. Plaintiff struggled with Foster while Cunningham stated "again, again." (Compl. 12.) Cunningham then opened the cell door and ordered Foster to cuff up. Cunningham entered the cell and pepper sprayed Plaintiff.
Plaintiff filed an inmate appeal regarding the incident on November 13, 2006. Plaintiff's appeal was partially granted and an investigation was conducted. However, it was "denied as to Plaintiff['s] claims" by Defendants Gonzalez and Carrasco. (Compl. 13.) Defendant Grannis denied Plaintiff's appeal at the director's level.
After the incident, Plaintiff and Foster were removed from their cell. Defendant Sailor later searched the cell and found a weapon, which was claimed to belong to Plaintiff. On January 18, 2007, Plaintiff was found guilty of a rules violation for having possession of an inmate manufactured weapon. Plaintiff's hearing was conducted by Defendant Large. Plaintiff claimed that either Defendant Cunningham or Sailor planted the weapon, or arranged for other inmates to plant the weapon. Plaintiff alleges that Sailor made inconsistent statements about the weapon being found in Plaintiff's cell and the cell being "capped," meaning the cell was not to be opened until it was released by a supervisor. Plaintiff filed an inmate appeal about the rules violation. Plaintiff claims that Defendants Carrasco, Gonzalez, and Grannis denied Plaintiff's appeal.
On November 16, 2006, Defendant Muth submitted a report that Plaintiff complains contained information that should have been deemed confidential. On March 2, 2007, Plaintiff was placed in the administrative segregation yard cages. Plaintiff was placed in a cage next to Foster. Foster told Plaintiff that he received Plaintiff's administrative appeals from other correctional officers. Plaintiff claims that the information in the reports and appeals that Foster obtained would label Plaintiff as a snitch and put Plaintiff in danger of being harmed or killed. Foster made photo copies of this information and distributed it to other inmates. Plaintiff began receiving threats from other inmates based on this information. Plaintiff claims that this information was deliberately given to Foster by "Defendants' agents" because of the staff complaint that Plaintiff filed on November 13 and 16. (Compl. 21.) Plaintiff filed an inmate appeal regarding the incident which was denied by Carrasco and Grannis.
On November 16, 2006, Defendant Traynham prepared a lock up order based on the report that claimed a weapon was found in Plaintiff's cell. Plaintiff claims that the order was based on false information because Plaintiff was placed in the administrative segregation unit when the weapon was found in Plaintiff's old cell. Plaintiff complains that he should have received the lock up order no later than 48 hours after it was written, but did not receive it until 11 days after it was written. Plaintiff also complains that Defendants Carrasco, Conzalez and Grannis failed to correct the errors that occurred, presumably through Plaintiff's administrative appeals.
On March 6, 2007, Defendant Hopkins found Plaintiff guilty of a rules violation report for assaulting inmate Foster based on the incident that occurred on November 12, 2006. Plaintiff complains that Hopkins ignored evidence that Plaintiff had informed staff that his safety was in danger and that staff refused to prevent the assault from occurring. Defendants Carrasco, Gonzalez, and Grannis denied Plaintiff's appeals on the matter.
Plaintiff also complains that Cunningham violated his rights by giving away Plaintiff's property to another inmate in retaliation for a staff complaint filed by Plaintiff. Cunningham gave some of Plaintiff's property to inmate Foster after they were removed from their cell. Plaintiff filed an inmate appeal requesting evidence, such as inmate Foster's canteen receipts, property card, and quarterly package receipts. Plaintiff claims that the evidence would have proved that Foster was in possession of Plaintiff's property. Plaintiff complains that Defendants Ortega, Zanchi, Carrasco, and Grannis refused to provide this evidence.
A. Eighth Amendment Claims
Plaintiff claims that Defendants violated his rights under the Eighth Amendment. The Eighth Amendment prohibits the imposition of cruel and unusual punishments and "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). A prison official violates the Eighth Amendment only when two requirements are met: (1) the objective requirement that the deprivation is "sufficiently serious", Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991), and (2) the subjective requirement that the prison official has a "sufficiently culpable state of mind", Id. (quoting Wilson, 501 U.S. at 298). The objective requirement that the deprivation be "sufficiently serious" is met where the prison official's act or omission results in the denial of "the minimal civilized measure of life's necessities". Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective requirement that the prison official has a "sufficiently culpable state of mind" is met where the prison official acts with "deliberate indifference" to inmate health or safety. Id. (quoting Wilson, 501 U.S. at 302-303). A prison official acts with deliberate indifference when he/she "knows of and disregards an excessive risk to inmate health or safety". Id. at 837. "[T]he official must both be 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." Id.
1. Failure to Protect and Use of Excessive Force
Plaintiff claims that Defendants were deliberately indifferent because they were informed of a threat to Plaintiff's safety and failed to protect Plaintiff. "Prison officials have a duty to take reasonable steps to protect inmates from physical abuse." Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982). To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent" to serious threats to the inmate's safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). To demonstrate that a prison official was deliberately indifferent to a serious threat to the inmate's safety, the prisoner must show that "the official [knew] of and disregard[ed] an excessive risk to inmate . . . safety; the official ...