The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS (Doc. 29)
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 ("CSP-Corcoran"). However, the events described in Plaintiff's complaint took place while he 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 Fourth, Eighth, and Fourteenth Amendments. Plaintiff names W.J. Sullivan (warden), D. Watson (correctional sergeant), P. Chan (correctional officer), S. McGregor (correctional officer), D. Jobb (correctional officer), D. Blankenship (correctional officer), M. Crotty (correctional officer), C. Nelson (correctional officer), E. Granillo (correctional officer), M. Carrasco (correctional captain), R. Johnson (correctional lieutenant), John Doe #1 (senior hearing official), Ms. Alexander (registered nurse), and J. Adams (medical technical assistant) as defendants ("Defendants"). Plaintiff has consented to jurisdiction by U.S. Magistrate Judge. (Doc. #3.)
For the reasons set forth below, the Court finds that Plaintiff's complaint states some cognizable claims. The Court will dismiss the non-cognizable claims, without leave to amend, for failure to state a claim and this action shall proceed on the claims found to be cognizable in this order.
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, Plaintiff's complaint was dismissed with leave to amend. (Doc. #4.) The Court noted that Plaintiff's original complaint consisted only of a caption page and did not contain any factual allegations. Plaintiff filed his first amended complaint on March 28, 2006. (Doc. #6.) On May 1, 2009, the Court screened Plaintiff's first amended complaint and dismissed it because it was illegible. (Doc. #21.) Plaintiff filed a second amended complaint on June 8, 2009. (Doc. #25.) On April 5, 2010, the Court screened Plaintiff's second amended complaint and found that it stated some cognizable claims for relief. (Doc. #27.) The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. Plaintiff filed his third amended complaint on May 5, 2010. (Doc. #29.) This action proceeds on Plaintiff's third amended complaint.
Plaintiff alleges that he was transferred to CCI-Tehachapi from Lancaster State Prison. Plaintiff complains that the staff at CCI-Tehachapi immediately acted hostile toward Plaintiff because the staff at Lancaster State Prison informed them that Plaintiff was a "staff assaulter" and filed administrative grievances. (Am. Compl. ¶ 22, ECF No. 29.)
Plaintiff claims that Defendant D. Watson withheld Plaintiff's personal and legal property because of Plaintiff's reputation as a staff assaulter and grievance filer.*fn1 Plaintiff filed a grievance about his property, but did not receive his property. Plaintiff told Defendant D. Blankenship that he wanted to speak with higher authorities. 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!" (Am. Compl. ¶ 25, ECF No. 29.)
Later, Watson approached Plaintiff and berated him. Plaintiff asked to speak with a higher authority again, but Watson began making comments about Plaintiff "wanting to hurt himself" and began spraying Plaintiff with pepper spray. (Am. Compl. ¶ 27, ECF No. 29.) Defendant P. Chan also joined in and sprayed Plaintiff. Watson asked Plaintiff if he wanted to come out of the cell, but when Plaintiff approached the door, he was bombarded with more pepper spray. Defendant S. McGregor then opened the door from the control tower to allow Watson to directly spray Plaintiff. Watson asked Plaintiff if he was ready to exit and the cell door suddenly opened completely and a crowd of guards rushed in and attacked Plaintiff. Plaintiff claims that Defendants M. Carrasco, R. Johnson, D. Jobb, Watson, and Chan were standing at the entrance of Plaintiff's cell watching Defendants D. Blankenship, M. Crotty, E. Granillo, and C. Nelson "assault and batter Plaintiff in the form of using unnecessary use of force excessively." (Am. Compl. ¶ 33, ECF No. 29.)
Plaintiff was then shackled and taken to a cell outside the building. Plaintiff's clothes were cut off and he was sprayed with cold water. Plaintiff claims that the weather was particularly cold because it was in the middle of winter. Plaintiff was verbally abused by Watson while he was being hosed down.
Watson and Granillo then escorted Plaintiff to the dining hall and placed him in a holding cage and strip searched him, leaving him naked. Watson took out his pepper spray and shook it up while making sexually harassing remarks. Watson left and returned later to tell Plaintiff that his officers were injured and weapons were found in Plaintiff's cell. Plaintiff was then sprayed with pepper spray again. Watson then falsely reported that Plaintiff spat on Watson's face to justify the use of pepper spray. Plaintiff claims that Granillo was present during the entire sequence of events but failed to intervene.
Plaintiff alleges that Watson refused to summon medical attention unless Plaintiff agreed to exit the holding cage and allow Watson to wash off all the pepper spray to eliminate any evidence of misconduct. When Plaintiff pled for medical assistance, Watson went outside to get the hose and sprayed Plaintiff with water again.
Plaintiff claims that D. Abarquez (not named as a defendant) then took photos of Plaintiff. Plaintiff complains that Abarquez was responsible for collecting evidence of the incident but allowed Plaintiff's cell to remain unsecured for over an hour, thereby allowing the other Defendants to enter and exit and plant false evidence in the cell.
Plaintiff was later seen by Defendant J. Adams and a "psych doctor." (Am. Compl. ¶ 46, ECF No. 29.) Plaintiff complains that neither person did anything to have Plaintiff transported to the medical health care unit for treatment. Plaintiff complained about the burning sensation in his eyes and on his body, and told J. Adams that he was on eye medication and needed his medication to alleviate the pain. Adams ignored Plaintiff and walked away. Plaintiff also complains that Defendant Alexander came by, but refused to offer any medical treatment.
Hours later, Watson told Plaintiff that he was being moved to the infirmary to be examined by a physician. However, Plaintiff alleges that he was tricked and was not seen by a physician. Plaintiff alleges that he was placed on suicide watch "in direct violation of his civil liberties." (Am. Compl. ¶ 50, ECF No. 29.) Plaintiff complains that while he was on suicide watch, he was "not provided with any of life's bare ...