The opinion of the court was delivered by: Sandra M. Snyder 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 (Doc. 18) RESPONSE DUE WITHIN 30 DAYS
Plaintiff Cedric R. Allen ("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 ("CDCR") and is currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. However, the events described in Plaintiff's complaint took place while Plaintiff was incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff is suing under section 1983 for the violation of his rights under the U.S. Constitution. Although Plaintiff does not specify what constitutional rights were violated, the facts alleged by Plaintiff appear to implicate Plaintiff's rights under the Eighth and Fourteenth Amendments.. Plaintiff names J. Rivera (correctional officer), McVay (correctional officer), Beattles (correctional officer), T. Quillen (correctional officer), R. Beer (correctional sergeant), F. Munoz (correctional sergeant), W. Felin (doctor), S. Rocha (correctional counselor), J. Martinez (correctional sergeant), D. Cano (correctional counselor), D. D. Sheppard-Brooks (associate warden), and L. L. Lowden (captain) as defendants. For the reasons set forth below, the Court finds that Plaintiff's second amended complaint states some cognizable claims. Plaintiff will be ordered to either notify the Court that he wishes to proceed only on the cognizable claims, or file an amended complaint that cures 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 2, 2005. (Doc. #1.) Plaintiff filed an amended complaint on March 29, 2006. (Doc. #8.) On August 15, 2008, the Court screened Plaintiff's amended complaint pursuant to 28 U.S.C. 1915A. (Doc. #17.) The Court found that Plaintiff's amended complaint failed to comply with the Federal Rules of Civil Procedure and failed to state any claims upon which relief can be granted under section 1983. Plaintiff's amended complaint was dismissed and Plaintiff was given leave to file a second amended complaint using the legal standards provided by the Court in its screening order. Plaintiff filed his second amended complaint on September 23, 2008. (Doc. #18.) This action proceeds on Plaintiff's September 23, 2008 second amended complaint.
On June 4, 2004, Plaintiff kicked Defendant J. Rivera. Plaintiff was dragged to the ground by Rivera and Defendant T. Quillen. Plaintiff was then hit repeatedly on the head with a long metal key and maced in the face. Plaintiff did not resist the assault and was lying down in a prone position while in handcuffs. Rivera and Quillen punch and kneed Plaintiff then dragged Plaintiff to a rotunda where multiple staff had responded to the incident. Plaintiff was slammed into the wall and attacked by several unknown officers. Defendant R. Beer then grabbed Plaintiff by the throat and choked him for four to five seconds. Defendant F. Munoz attempted to open Plaintiff's mouth so that Munoz could spray mace down it. Plaintiff resisted and Munoz maced Plaintiff in the face. Defendant McVay then struck Plaintiff in the face with a closed fist. Plaintiff was slammed to the ground by McVay, causing his teeth to chip and a denture to fly out of his mouth. McVay began to grind his knee into Plaintiff's jaw while an officer placed Plaintiff into leg restraints. McVay and another unknown officer then picked Plaintiff up off the ground and slammed him into a pillar of concrete, fracturing Plaintiff's forehead. Plaintiff was dragged into the shower by McVay and the unknown officer and forced Plaintiff's face into the shower water, rendering Plaintiff unable to breathe. When Plaintiff was taken out of the shower, Defendant Beattles ordered a spit mask to be placed over Plaintiff's head. Plaintiff told Beattles that he could not breathe through the spit mask but was ignored.
On June 8, 2004, Defendant W. Felin removed several stitches from Plaintiff's bottom lip prematurely.*fn1 Plaintiff claims that this was done deliberately to cause Plaintiff pain. Plaintiff informed Felin that the stitches were not ready to come out, but Felin ignored Plaintiff. Plaintiff claims that Felin used an oversized pair of scissors and a small plastic scalpel to remove the stitches, which caused the procedure to take a considerable amount of time and caused excruciating pain. Plaintiff claims a "life long scar" developed on his bottom lip because the stitches were removed prematurely.
Plaintiff claims that other prison staff relentlessly retaliated against Plaintiff for kicking Rivera. Specifically, Defendants S. Rocha, D. Cano, D. D. Sheppard-Brooks, L. L. Lowden, and J. Martinez refused to release Plaintiff from the security housing unit ("SHU") when his term expired and imposed an indeterminate SHU sentence without any reason. Plaintiff also claims that he was given a sex offender label so that he would be in danger when he was released into the general population. Finally, Plaintiff claims that he was transferred to a prison where he had known enemies in retaliation for his actions.