The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS
Plaintiff Mr. 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 ("CDCR") and is currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. The events described in Plaintiff's complaint took place when Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. Plaintiff is suing under Section 1983 for the violation of his rights under the First, Eighth, and Fourteenth Amendments. For the reasons set forth below, the Court finds that Plaintiff's third amended complaint states some cognizable claims. This action will proceed on Plaintiff's cognizable claims and the remaining claims will be dismissed without leave to amend.
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 the Court must accept as true all factual allegations contained in a complaint, the 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.) On December 10, 2008, Plaintiff's original complaint was screened by the Court pursuant to 28 U.S.C. § 1915A. (Doc. #20.) The Court found that Plaintiff's original complaint failed to state any cognizable claims. Plaintiff's original complaint was dismissed and Plaintiff was given leave to file an amended complaint which cured the deficiencies in his claims. On June 1, 2009, Plaintiff filed his first amended complaint. (Doc. #28.) On July 14, 2009, Plaintiff filed a second amended complaint without being ordered to do so, and without first seeking leave from the Court to do so. (Doc. #32.) On November 30, 2009, the Court screened Plaintiff's second amended complaint.
(Doc. #33.) The Court found that Plaintiff's second amended complaint stated some cognizable claims and ordered Plaintiff either to file a third amended complaint or to notify the Court that he wished to proceed only on the cognizable claims. (Doc. #33.) On November 30, 2009, Plaintiff filed his third amended complaint. (Doc. #36.) This action proceeds on Plaintiff's third amended complaint.
On September 7, 2005, Plaintiff was sweeping the floor at PVSP. (Compl. ¶¶ 1-2.) Plaintiff alleges that he was in an authorized location and in compliance with all prison rules and regulations at the time. (Compl. ¶ 3.) However, Plaintiff was startled when he suddenly heard the rush of feet pounding the pavement behind him. (Compl. ¶ 5.) Plaintiff reflexively responded in a defensive manner by quickly turning around and swinging blindly toward the sound of rushing feet, being under the impression that he was about to be assaulted by violent inmates. (Compl. ¶¶ 6-7.) However, Plaintiff discovered that he had actually struck officer Fountain. (Compl. ¶ 9.) Officer D. Do ordered Plaintiff to get on the ground. (Compl. ¶ 9.) Plaintiff was handcuffed by officers Do and Fountain, and officers D. Huckabay*fn1 , R. Milan, J.M. Mattingly, Franco, Soares, M. Jiminez, T. Bullock, K. Witt, D. Rose, Carminati, White, and Deathridge escorted Plaintiff away. (Compl. ¶ 10.)
Plaintiff describes the escort as a "gauntlet run," whereby Huckabay, Milan, Mattingly, Franco, Soares, Jiminez, Bullock, Witt, Rose, Carminati, White, and Deathridge punched, kicked, slapped, spit on, pushed, and shoved Plaintiff as he was escorted outside the building. (Compl. ¶ 10.) As the escort left the dayroom area, Huckabay told his subordinate officers to "Bust[Plaintiff's] head on the steel door!!" (Compl. ¶ 12.) Plaintiff was then rammed head-first into a steel door. (Compl. ¶ 13.) As the escort proceeded, the officers continued to beat Plaintiff with their batons, fists, and feet. (Compl. ¶ 15.)
Plaintiff was brought "out of AFB1 outside in front of the cell block" and sergeant Galvan and other unidentified John Doe officers joined the escort group and participated in attacking Plaintiff. (Compl. ¶ 16.) Plaintiff was thrown to the ground and Huckabay ordered that leg restraints be placed on Plaintiff and a gurney be brought out. (Compl. ¶ 19.) Plaintiff was picked up by Franco and Milan and thrown to the ground. (Compl. ¶ 19.) Restraints were placed on Plaintiff's ankles. (Compl. ¶ 19.) Franco began standing on top of the leg restraints "intentionally causing extreme unnecessary pressure pain to plaintiff's ankles. . . ." (Compl. ¶ 19.) Lieutenant J.L. Scott arrived and observed the continued beating of Plaintiff. (Compl. ¶ 20.) Scott then tossed Plaintiff onto the gurney and Plaintiff was transported to the medical clinic. (Compl. ¶ 21.) Officers continued to attack Plaintiff while Plaintiff was being transported. (Compl. ¶ 21.)
Licensed vocational nurse D. Hall conducted a video taped examination of Plaintiff. (Compl. ¶ 24.) Plaintiff complains that Hall only documented some of the many injuries suffered by Plaintiff in an attempt to cover up the misconduct committed by the other officers. (Compl. ¶ 27.) Plaintiff was transported to the administrative segregation unit ("ASU"). (Compl. ¶ 28.) During the transport, officer Soares struck Plaintiff several times in his right eye. (Compl. ¶ 28.) Plaintiff was examined by licensed vocational nurse J. Carr when he arrived at ASU. (Compl. ¶ 29.) Plaintiff again complains that numerous injuries went undocumented as part of a conspiracy to cover up officer misconduct. (Compl. ¶ 29.)
While housed in ASU, Plaintiff's cell mate begged nursing staff to provide medical care for Plaintiff's serious injuries. (Compl. ¶ 30.) Plaintiff complains that he did not receive any medical treatment until ...