The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF NO. 21) OBJECTIONS DUE WITHIN 30 DAYS
Findings And Recommendations
Plaintiff Virgil E. Holt ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on May 4, 2009. The Court screened Plaintiff's complaint and found that it stated cognizable claims. On November 5, 2009, Plaintiff filed a motion to amend his complaint. The Court granted Plaintiff's motion. On December 28, 2009, Plaintiff filed a motion requesting leave to file a second amended complaint. Because the Court had yet to screen Plaintiff's first amended complaint, the Court granted Plaintiff leave to file a second amended complaint. Plaintiff's second amended complaint, lodged December 28, 2009 and filed April 8, 2010, is presently before the Court for screening.
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).
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of Second Amended Complaint
Plaintiff was previously incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names the following twenty-eight Defendants: correctional officer ("C/O") R. Nicholas, C/O A. Holguin, sergeant J. Ortega, sergeant L. Machado, C/O J. Juden, C/O G. Adame, C/O F. Rivera, C/O R. Valverde, C/O D. Coontz, captain D. Zanchi, associate warden M. Carrasco, medical technical assistant M. Bubbel, lieutenant K. Prior, C/O J. Tyree, lieutenant Large, sergeant Soto, sergeant Yubeta, sergeant Worrell, doctor Vo, C/O Knight, C/O T. Crouch, C/O Pinkerton, C/O Valasco, correctional counselor II T. Nipper, C/O C. A. Eubanks, C/O G. Hopkins, C/O P. Stevenson, and lieutenant L. Lundy, and Does 1 through 5 and 7 through 10.*fn1
An examination of Plaintiff's second amended complaint indicates that Plaintiff alleges six separate incidents of constitutional violations: (1) Counts 1 through 12, use of excessive force on April 9, 2007 and subsequent failure to decontaminate Plaintiff after exposure to pepper spray; (2) Count 13, denial of due process for gang validation, also on April 9, 2007; (3) Count 14, deliberate indifference in March and April of 2006; (4) Count 15, denial of due process on November 2008 regarding a rules violation report; (5) Count 16, retaliation on March 2009 for filing inmate grievances; and (6) Count 17, retaliation in August 2009. Count 17 is related to Counts 1 through 12 because it involves a common defendant retaliating against Plaintiff for filing inmate grievances regarding actions listed in Counts 1 through 12. Incident 1 and 6 are substantially related to each other; Incidents 2 through 5 are not related.
The Court will recommend dismissal of Incidents 2 through 5 from this action. Pursuant to Federal Rule of Civil Procedure 20(a)(2), defendants may be joined in one action as defendants if "(A) any right to relief is asserted against them jointly, severally, or with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences and (B) any question of law or fact common to all defendants will arise in the action." Incidents 2 through 5arise from different occurrences and involve different questions of fact or law when compared to Incidents 1 and 6. The Court will thus dismiss Incidents 2 through 5 from this action without prejudice to refiling in a separate action.
Because the only actions alleged against Defendants Crouch, Hopkins, Eubanks, Nipper, Stevenson, and Lundy concern Incidents 2 through 5, the undersigned recommends that these Defendants also be dismissed from this action without prejudice. The Court now turns to screening Plaintiff's claims regarding Incidents 1 and 6.
A. Use Of Excessive Force
Plaintiff alleges the following. On or about April 9, 2007, Plaintiff was sitting on his bunk when he heard the sound of officers running towards Plaintiff's cell. (Second Am. Compl. ("SAC") ¶ 36.) Plaintiff's cell mate was attempting to flush some pruno kicker down the toilet. (SAC ¶ 37.) Defendants Nicholas, Holguin, and Ortega appeared at Plaintiff's cell door, and Defendants Nicholas and Holguin began to spray Plaintiff's cell with pepper spray. (SAC ¶ 39.) Defendants ordered Plaintiff and his cell mate to get down and cuff up. (SAC¶ 40.) Plaintiff and his cell mate complied, but Defendants Nicholas and Holguin continued to spray Plaintiff with pepper spray. (SAC ¶¶ 41-43.) Defendant Ortega then told Defendant Holguin to deploy a T-16 pepper spray gas grenade into the cell despite Plaintiff and his cell mate being prone on the floor. (SAC ¶ 44.) Plaintiff and his cell mate were in the cell for two minutes for the pepper spray grenade to take effect. (SAC ¶ 47.) Plaintiff had difficulty breathing, and his skin was burning so severely Plaintiff felt like it was melting. (Id.)
Defendants Holguin and Nicholas wrote incident and rules violation reports charging Plaintiff with resisting a peace officer. (SAC ¶ 51.) Defendants L. Machado, J. Juden, and Doe 1 stood by and did nothing to intervene as Defendants Nicholas, Holguin, and Ortega applied the unnecessary use of chemical force. (SAC ¶ 52.) Defendant Machado ordered Plaintiff to remove his clothes and crawl backwards towards the cell door. (SAC ¶ 53.) Defendants Machado and Juden dragged Plaintiff out of his cell by his ankles, scraping the skin off both of Plaintiff's knees. (SAC ¶ 55.) Defendant Nicholas then threatened to shoot someone; ...