The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER THAT ACTION PROCEED ON THE SECOND AMENDED COMPLAINT ON EXCESSIVE FORCE AND DENIAL OF MEDICAL CARE CLAIMS, DISMISSING ALL OTHER CLAIMS AND CERTAIN DEFENDANTS
ORDER STRIKING NOTICES AND/OR STATUS REPORTS FILED BY PLAINTIFF
(Docs. 41, 44-48, and 50-57.)
Plaintiff Edward Demerson, is a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 29, 2008.
The Court dismissed Plaintiff 's complaint, with leave to amend, on September 22, 2008. (Doc. 26.) Plaintiff filed an amended complaint on October 27, 2008. (Doc. 27.) On February 26, 2009, the Court ordered Plaintiff to effect service of the amended complaint within one-hundred twenty days. (Doc. 33.) On June 24, 2009, Plaintiff filed the Second Amended Complaint. (Doc. 39.) On July 6, 2009, Plaintiff filed a partial amendment to his Second Amended Complaint.*fn1 (Doc. 40.) On December 15, 2009, an order issued striking the partial amendment from the record and requiring Plaintiff to file a third amended complaint, if any, within thirty days or the second amended complaint would be deemed the operative pleading. (Doc. 49.) Over the last eleven months, Plaintiff has filed multiple notices indicating that a third amended complaint is en route, pending, or completed, and would be mailed/filed shortly. (Docs. 41, 44-48, and 50-55.) However, to date, Plaintiff has not filed a third amended complaint. Thus, Plaintiff's Second Amended Complaint, filed on June 24, 2009, is now deemed the operative pleading in this case.*fn2 Plaintiff's multiple notices indicating that a third amended complaint is en route, pending, or completed and would be mailed/filed shortly are appropriately stricken from the record. (Docs. 41, 44-48, and 50-57.)
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 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts..," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
II. Summary of Plaintiff's Second Amended Complaint
Plaintiff is currently housed at Salinas Valley State Prison. The claims at issue in this action allegedly occurred at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. Plaintiff names Director Jeanne S. Woodford; Inmate Appeals Branch Chief N. Grannis; Warden Darrell G. Adams; Associate Wardens Ken Clark, L. Polk, and J. Ahlin; Captain D. A. Cueval; Lieutenants L. Cartagena,*fn3 V. Black, and Alva; Sergeants Munoz and Hillard; Correctional Officers B. Phillips, E. Campos, M. H. Clausing, Bardonnex, and Amaro; and Medical Technical Assistant Gregory as defendants.
Plaintiff's claims against the defendants arise from events that began on January 25, 2006, summarized briefly as follows. Plaintiff, who is a mobility impaired inmate, was in the caged section of the walk-alone yard when he requested nail clippers. Plaintiff was told by Defendant Phillips that he would get the nail clippers with the hair clippers. Plaintiff informed Phillips that was not how things were done, that it wastes time because not everyone wants the nail clippers, and Correctional Officer Molina, not Phillips, had been on this yard for the past year. Phillips advised Plaintiff to wait until they went inside, that he had something for Plaintiff.
After yard time was over, Plaintiff was the last inmate brought in. After being searched and shackled, Phillips rammed Plaintiff into the wall and told him that was for the "shit" he had been talking. (Doc. 39, 2nd Amend. Comp., pp. 9-10.) Phillips and Campos proceeded to hit, slam, kick, and stomp Plaintiff. Defendants Amaro, Clausing, Bardonnex, Sgt. Munoz, and Lt. Cartagina ran toward Plaintiff and began twisting the upper and lower ends of Plaintiff's body in different directions. (Id.) Plaintiff was then handcuffed, shackled, masked, hog-tied and carried by the chains to the holding cage -- where he was left in extreme pain. (Id.) Sgt. Munoz came over and kicked Plaintiff in the head where his head was leaning against the cage. (Id.) Plaintiff was feeling chest pains and Sgt. Munoz brought Psyche Tech G. Hillard to assess Plaintiff, but Hillard was deliberately indifferent to Plaintiff's request to see a doctor and refused to write it on the medical report. (Id.) Plaintiff told Sgt. Munoz that he was having chest pain and Sgt. Munoz brought over Nurse Gregory who told Plaintiff to stand up. (Id. at p. 11.) Plaintiff indicated that he could not stand. (Id.) Nurse Gregory indicated that Plaintiff would not receive any medical attention unless he stood up and thereafter refused to treat Plaintiff. (Id.) Lt. Cartagina then video-taped Plaintiff's injuries, but did not secure medical attention for Plaintiff even though Plaintiff told him that Plaintiff had chest pains. (Id.) Plaintiff was not provided with any medical care until approximately thirteen hours later, when he was taken to the prison's hospital, given medication, and admitted over night.
After being discharged, Plaintiff was taken back to administrative segregation and housed on strip cell status. Plaintiff was later issued a Rules Violation Report, found guilty at a prison disciplinary hearing, ...