The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Daniel Manriquez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 7, 2009, Defendants J. Huchins, J. Reynoso, M. Hacker, R. Roberson, C. Munoz, D. Daley, R. Perez, Paz, C. Morse, Omos, and Clausings ("Defendants") filed a motion to dismiss. (Doc. #16.) Defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff's complaint fails to state a claim upon which relief can be granted under Section 1983. On February 1, 2010, Plaintiff filed an opposition to Defendants' motion to dismiss. (Doc. #23.) On February 17, 2010, Defendants filed a reply to Plaintiff's opposition. (Doc. #26.)
This action proceeds on Plaintiff's complaint filed on March 11, 2009. (Doc. #1.) Plaintiff is suing Defendants under Section 1983 for the violation of Plaintiff's rights under the Eighth Amendment. Plaintiff alleges that on February 28, 2007, he refused to relinquish his food tray, covered up his cell door, and refused to cuff up.*fn1 (Compl. 4.*fn2 ) Plaintiff claims that he did not pose a threat to anyone or pose a threat to damage any property. (Compl. 4.) Nonetheless, Defendants Hutchins and Reynoso ordered their subordinates to use physical force to extract Plaintiff from his cell. (Compl. 4.) Defendants Munoz, Clausings, and Omos sprayed Plaintiff's cell with a chemical similar to pepper spray. (Compl. 4.) Plaintiff claims that Hutchins, Reynoso, Hacker, and Roberson supervised Munoz, Clausings, and Omos during the incident. (Compl. 4.) Plaintiff experienced overwhelming pain from the chemical. (Compl. 4.) Plaintiff uncovered his cell door and windows and voluntarily removed his clothing so that he could be searched, restrained, and removed from his cell. (Compl. 4.)
Plaintiff alleges that Defendants Morse, Clausings, Omos, Munos, and Daley did not remove Plaintiff from his cell and instead deliberately prolonged Plaintiff's pain by refusing to remove Plaintiff from his cell and "seeing certain body parts [such as his genitals underarms and feet] slowly." After restraints were placed on Plaintiff, "each defendant"*fn3 prolonged Plaintiff's pain by "waiting until Defendant Perez put leg restraints on Plaintiff" before removing Plaintiff from his cell. (Compl. 5.)
Plaintiff was then decontaminated by Defendants Paz and Morse who "simply just ran water on Plaintiff." (Compl. 5.) Defendants did not decontaminate Plaintiff's cell and put Plaintiff back in his cell which was still drenched with the chemical. (Compl. 5.) Plaintiff began choking and experienced burning in his eyes and body from the chemical. (Compl. 5.) Plaintiff claims that Defendants Paz, Morse, Clausings, Daley, Perez, Omos, made no effort to decontaminate Plaintiff's cell. (Compl. 5.) Plaintiff alleges that Defendants Hacker, Roberson, Reynoso, Hutchins, and Munoz ordered Plaintiff to be placed in his contaminated cell knowing that Plaintiff would suffer pain from the chemical.
Plaintiff also alleges that Hacker, Roberson, Reynoso, Hutchins, and Munoz ordered that Plaintiff be deprived of tooth paste, a tooth brush, soap, toilet paper, clothing, bedding, and a mattress. Plaintiff was not provided with cleaning supplies to clean the chemical, or clothing other than Plaintiff's "chemically drenched underwear." (Compl. 5-6.)
B. Defendants' Motion to Dismiss
Defendants move for dismissal on the ground that Plaintiff's allegations do not state a claim for relief under Section 1983. Defendants also argue that the Eleventh Amendment bars liability against Defendants in their official capacities, that Plaintiff's claims against Defendants Hutchins and Reynoso are not cognizable because there is no respondeat superior liability under Section 1983, and that Defendants are entitled to qualified immunity. Defendants also state that in the event that the Court denies Defendants' motion to dismiss, Defendants request for a more definite statement of Plaintiff's claims under Federal Rule of Civil Procedure 12(e). Defendants argue that Plaintiff fails to state a claim for the use of excessive force because Plaintiff has admitted to causing disorder by failing to relinquish his food tray and by covering his cell door and windows. (Notice of Mot. and Mot. to Dismiss First Am. Compl. or in the Alternative, for a More Definite Statement; Mem. of P. & A. in Supp. Thereof 10:2-6.*fn4 ) Defendants contend that the amount and type of force used was appropriate in light of the circumstances. (Mot. to Dismiss 10:6-10.) Defendants also argue that Plaintiff has only alleged a "de minimis injury" which is not serious enough to warrant protection under the Eighth Amendment. (Mot. to Dismiss 10:11-13.) Defendants also argue that the disturbance caused by Plaintiff could have resulted in a significant threat to the safety and security of the correctional officers and other inmates and that Plaintiff was decontaminated prior to being returned to his cell, "appropriately neutralizing any harm that might have been caused by the pepper-spray like substance." (Mot. to Dismiss 10:13-20.)
Defendants contend that Plaintiff fails to state a claim for the use of excessive force because the facts alleged do not support the conclusion that Defendants acted with deliberate indifference. (Mot. to Dismiss 11:12-16:26.) Defendants argue that Plaintiff has failed to plead facts suggesting deliberate indifference because "[a]t most, plaintiff offers his own subjective interpretations of the officers' conduct in delaying his removal from the cell but pleads no criminally reckless behavior on the part of the officer-defendants. . . ." (Mot. to Dismiss 13:19-23.) Defendants characterize Plaintiff's allegations as "exaggeration," and argue that when viewed in light of the totality of the circumstances, Defendants' actions "were an instantaneous reaction to the plaintiff's aggressive behavior, not deliberate indifference . . . ." (Mot. to Dismiss 15:8-18.)
Defendants also contend that Plaintiff's allegations against Defendants Hutchins and Renyoso are insufficient because there is no allegation that Hutchins or Reynoso were deliberately indifferent and that Plaintiff is attempting to hold them vicariously liable for the conduct of their subordinates. (Mot. to Dismiss 17:6-12.) Defendants argue that Plaintiff has not alleged that Hutchins or Reynoso implemented a policy repugnant to the constitution that caused the alleged constitutional violations, personally participated in the alleged violations, or knew about the violations and failed to prevent them. (Mot. to Dismiss 17:19-18:8.)
Finally, Defendants argue that Plaintiff's claims against Defendants in their official capacities are barred by the Eleventh Amendment and Defendants are entitled to qualified immunity because their actions did not violate clearly established constitutional law. (Mot. to Dismiss 19:14-21:15.)
On February 1, 2010, Plaintiff filed an opposition arguing that his complaint does state sufficient facts to support a claim under Section 1983. (Doc. #23.) Defendants filed a reply on February 17, 2010. (Doc. #26.)
Defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff's complaint fails to state a claim upon which relief can be granted under Section 1983. When ruling on a motion to dismiss under Rule 12(b)(6), "[a]ll allegations and reasonable inferences are taken as true, and the allegations are construed in the light most favorable to the non-moving party." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). However, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. "Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of facts to support its claims." Id. If matters outside the pleadings are ...