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. 25)
Plaintiff George E. Jacobs, IV ("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 the California State Prison in Corcoran, California. However, the events described in Plaintiff's complaint took place while Plaintiff was incarcerated at the California Correctional Institution in Tehachapi, California ("CCI-Tehachapi"). Plaintiff is suing under section 1983 for the violation of his rights under the First, Fourth, Eighth, and Fourteenth Amendments. Plaintiff names W.J. Sullivan (chief executive officer), D. Watson (sergeant), P. Chan (correctional officer), S. McGregor (correctional officer), M. Carrasco (captain), R. Johnson (lieutenant), D. Jobb (correctional officer), D. Blankenship (correctional officer), M. Crotty (correctional officer), C. Nelson (correctional officer), E. Granillo (correctional officer), D. Abarquez (correctional officer), John Doe #1 (lieutenant), Alexander (registered nurse), and J. Adams (medical technician assistant) as defendants.
Plaintiff has consented to jurisdiction by U.S. Magistrate Judge. (Doc. #3.) No other parties have made an appearance in this action.
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 (1) notify the Court that he wishes to proceed only on the claims found to be cognizable in this order, or (2) file an amended complaint which cures the deficiencies identified in his second amended complaint.
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).
This action was transferred from the district court for the Central District of California on December 22, 2005. (Doc. #1.) On February 17, 2006, the Court dismissed Plaintiff's complaint. (Doc. #4.) Plaintiff was given leave to file an amended complaint. On March 28, 2006, Plaintiff filed his first amended complaint. (Doc. #6.) On May 1, 2009, the Court screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A(a). (Doc. #21.) The Court found that Plaintiff's first amended complaint appeared to state some cognizable claims, but the handwritten complaint was "virtually illegible." (Order Dismissing First Am. Compl. With Leave to Amend 2:28-3:1.) Plaintiff was given leave to file a second amended complaint. On June 8, 2009, Plaintiff filed his second amended complaint. (Doc. #25.) This action proceeds on Plaintiff's second amended complaint.
On November 9, 2004, Plaintiff was transferred to CCI-Tehachapi from Lancaster State Prison. (Compl. ¶ 28.) Plaintiff claims that officials at Lancaster State Prison informed Defendants that Plaintiff was a "staff assaulter" and that Plaintiff filed prison complaints against prison staff. (Compl. ¶ 29.)
Plaintiff alleges that on January 24, 2005, Defendant Watson purposefully withheld Plaintiff's property "out of retaliation and vindictiveness." (Compl. ¶ 30.) Plaintiff told Defendant Blakenship that he wanted to speak with "higher authority" about his property. (Compl. ¶¶ 30-31.) Blankenship told Plaintiff that "today is not a good day to be doing this, because the sergeant (Defendant D. Watson) is not to be messed with." (Compl. ¶ 32.) Watson arrived later and verbally abused Plaintiff. (Compl. ¶ 33.) When Plaintiff requested to speak with higher authorities again, Watson opened Plaintiff's food port and pepper sprayed Plaintiff. (Compl. ¶ 34.) Defendant Chan joined in and the two pepper sprayed Plaintiff for at least an hour. (Compl. ¶ 35.) Defendant McGregor opened Plaintiff's cell door about three inches so that Watson could pepper spray Plaintiff directly. (Compl. ¶ 38.) As Watson yelled at Plaintiff, Plaintiff's cell door opened and a crowd of guards rushed into Plaintiff's cell and attacked him. (Compl. ¶ 39.) Defendants Carrasco, Johnson, Watson, Chan, and Jobb stood around Plaintiff's cell while Defendants Blankenship, Crotty, Granillo, and Nelson attacked Plaintiff. (Compl. ¶ 40.) Plaintiff was escorted outside and sprayed with a water hose, despite the fact that it was the middle of winter and the facility shower was directly in front of Plaintiff's cell. (Compl. ¶¶ 42-43.)
Plaintiff was stripped naked and was escorted by Watson and Granillo to a holding cage. Watson verbally taunted Plaintiff by making remarks about Plaintiff's genitals. (Compl. ¶ 44.) Watson then left to check on the other officials. (Compl. ¶ 45.) Watson returned later and told Plaintiff that the other officers were injured and weapons were found in Plaintiff's cell. (Compl. ¶ 45.) Watson then pepper sprayed Plaintiff. (Compl. ¶ 45.) Plaintiff complains that Granillo watched the incident without intervening. (Compl. ¶ 47.) Plaintiff requested medical attention for his injuries. (Compl. ¶ 48.) Watson told Plaintiff that he would not receive medical attention unless Plaintiff agreed to exit the holding cage so that the pepper spray could be washed off. (Compl. ¶ 49.) Plaintiff refused and medical attention was not called. (Compl. ¶ 50.) Watson later went outside, retrieved the hose, and washed Plaintiff down while he was in the holding cage. (Compl. ¶ 52.) When Watson was done, medical assistance was summoned. (Compl. ¶ 52.)
Defendant Abarquez arrived and began taking pictures of the scene. (Compl. ¶ 53.) Plaintiff complains that Arbarquez failed to "secure" Plaintiff's cell, which allowed other officers to enter and trample the premises by planting false evidence. (Compl. ¶ 53.)
Defendant Adams arrived with a psych doctor. (Compl. ¶ 54.) Plaintiff complains that Adams and the doctor saw Plaintiff's condition but did not transfer Plaintiff to a medical health care unit for treatment for the burning sensation in his eyes. (Compl. ¶ 54.) Plaintiff told Adams that he needed his personal eye medication to alleviate the pain but Adams walked away. (Compl. ¶ 54.) Defendant Alexander also saw Plaintiff but refused to treat Plaintiff's condition. (Compl. ¶ 55.)
Hours later, Watson informed Plaintiff that he was being moved to the infirmary to be examined by a physician. (Compl. ¶ 57.) Plaintiff was taken to the infirmary but was not seen by a physician. (Compl. ¶ 58.) Plaintiff complains that he was tricked and placed in the prison's suicide watch room. (Compl. ¶ 58.) Watson arrived later to give Plaintiff food served in plastic bags. (Compl. ¶ 59.) Watson instructed Plaintiff to step to the back of the room, but Plaintiff refused because he "was not going to allow no public official to feed him his dinner mixed in plastic bags." (Compl. ¶ 59.)
Later that night, Abarquez transferred Plaintiff to Corcoran State Prison. (Compl. ¶ 61.) Plaintiff was housed in the mental ward and placed on suicide ...