The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
ORDER RE DISMISSAL WITH LEAVE TO AMEND
Pro se prisoner Ernie M. Garcia (hereinafter referred to as "Plaintiff") filed a Civil Rights Complaint Pursuant to 42 U.S.C. §1983 on August 5, 2010, pursuant to the Court's Order re Leave to File Action without Prepayment of Full Filing Fee. Plaintiff has named as Defendants Lt. P. Covello; Correctional Sergeant G. Wheeler; Correctional Officer C. Boyd; Correctional Officer Cervantes; Correctional Officer C. Holthe; Correctional Officer C. Lee; Correctional Officer V. Lopez and Correctional Officer J. Ruedas; Correctional Officer M. Valencia, in both their individual and official capacities.
Plaintiff alleges he was an inmate at Ironwood State Prison on Alpha Yard ("A-Yard") on September 7, 2008. On that date, Plaintiff was placed in Administrative Segregation ("Ad-Seg") for being in possession of a cellular phone. Plaintiff alleges before this incident occurred, he experienced continuous harassment by California Department of Corrections and Rehabilitation ("CDCR") officials wherein random cell searches were conducted with negative results. Plaintiff's personal property would be destroyed/broken during these cell searches; however, through the 602 grievance system, Plaintiff's personal property was replaced. (Complaint at ¶ 14.) Plaintiff received a Rules Violation Report ("115") for "possession of a cellular phone" on September 7, 2008. While being detained in a cage at the program office, waiting to be housed in Ad-Seg, Plaintiff was interrogated by Defendant Correctional Officers regarding Plaintiff's possession of a cell phone. Plaintiff refused to answer any questions. Plaintiff was told by Defendant Correctional Officers that "he would make things worse for himself if he didn't cooperate." Plaintiff believed this comment was just a false threat. (Id. at ¶15.)
On September 10, 2008, while in Ad-Seg pending investigation, CDCR officials came to Plaintiff's cell door in Ad-Seg and told Plaintiff and his cellie to "cuff-up." Plaintiff asked where they were going and was told by the escorting Correctional Officers that they were going to the concrete group yard. When Plaintiff arrived at the concrete group yard, the yard gate was closed behind them. Plaintiff felt uneasy, realizing he and his cellmate were placed on a Sensitive Needs Yard ("SNY")/Protective Custody ("PC") yard. Id.
Plaintiff alleges there were 10 individuals who were in fact SNY/PCs who approached Plaintiff and his cellie asking if they were "Southsiders." Plaintiff responded, "yes," when one of the individuals responded back to Plaintiff and said, "Fuck Southsiders. You're on a SNY yard." Plaintiff and his cellmate knew their lives were in danger and found themselves in a gladiator-type scenario with no way out. Id. at ¶ 17. Plaintiff alleges as a general population inmate he should not have been placed on this yard. A melee then resulted. Plaintiff was in fear for his life being outnumbered 10 to 2 and had to fight to protect his life. Plaintiff was then sprayed with a "hydro force water restraint system" three times. [This is a cannon that shoots gallons of mace in one shot (not water).] After the third direct shot at Plaintiff he could no longer breathe and his eyes and skin started to burn. Plaintiff started to hyperventilate, as he is asthmatic. Plaintiff could no longer see and struggled to breathe while fearing for his well-being. Id. at ¶ 18.
At that time, Correctional Officers ordered all inmates to get down. Plaintiff was told to lay face down on the ground in puddles of mace. Plaintiff alleges that the same Correctional Officers who responded to the alarm were the ones who escorted Plaintiff to the group yard. When Plaintiff asked for help, one Correctional Officer laughed and said, "Does that shit burn, tough guy?" Plaintiff alleges that he knew that this was retaliation for not giving up information on how he came into possession of a cell phone. Id. at ¶ 19.
Plaintiff was then handcuffed and removed from the yard. He was taken back to Ad-Seg and put in a lower A Section shower to self-decontaminate. However, when placed in the shower, Defendants Boyd and Ruedas made Plaintiff stand under hot water to decontaminate.
After numerous complaints, Defendants removed Plaintiff from the shower and allowed him to stand under cool water. Plaintiff was then taken back to his cell. For two days, Plaintiff suffered pain when he urinated from the mace and being forced to lay on the ground. Plaintiff was then given a Rules Violation Report and found guilty for battery on inmates. (Id. at ¶ 20.)
Plaintiff was never seen by a committee or classified for group yard before this incident and alleges he should never have been pulled out for group yard. Plaintiff filed a 602 administrative appeal regarding the incident; however, he never received a response. (Id. at ¶ 21.)
On March 18, 2009, Plaintiff was "picked up" by an Institutional Gang Investigator ("IGI") and validated as a prison gang associate. While IGI Smith handcuffed and escorted Plaintiff back to Ad-Seg, Defendant Lt. Covello again interviewed Plaintiff concerning the name of the "prison official" who provided the cell phone. Plaintiff refused to interview or answer any questions. IGI Smith stated that, "By refusing to cooperate, I was making shit worse for myself and that I would never walk mainline again." (Id. at ¶ 23.)
Plaintiff alleges that these unjust and unethical methods have continually been used to intimidate inmates. Plaintiff submitted an administrative appeal regarding his prison gang validation. Defendant Lt. Covello denied the appeal. Defendant Lt. Covello used intimidation methods and stated to Plaintiff that, "You don't want to fuckin' bump heads with me, I'll make sure you never walk mainline." Plaintiff alleges this was because he did not give the information regarding the cell phone that was being requested.
Plaintiff is now validated and housed in California Correctional Institution ("CCI") Tehachapi - Security Housing Unit ("SHU"). Plaintiff alleges this is designed to reduce visual, environmental and social stimulation. Plaintiff alleges he is subjected to extreme isolation and environmental deprivation. (Id at ¶ 25.)
Plaintiff alleges that the incident on September 10, 2008 resulting in a melee constituted an unsafe condition and was gross negligence, retaliatory and constituted cruel and unusual punishment. Plaintiff alleges his due process rights were violated and he suffered intentional infliction of emotional distress under the Eighth and Fourteenth Amendments. (Id. at ¶ 27.)
Plaintiff seeks a preliminary and permanent injunction ordering
Defendants Lt. Covello, Wheeler, Boyd, Cervantes, Holthe, Lee, Lopez,
Ruedas and Valencia to cease their tactics and retaliation used
against inmates and procedures relating to prison gang validation,
debriefing and segregation and to promulgate an internal investigation
of the tactics and retaliation used against inmates and the policy and
practice of placing and/or retaining prisoners in Ad-Seg and/or SHU
based on assumptions and mere affiliation (Id. at ¶ 28);*fn1
Plaintiff's prison file the false, unreliable and insufficient
information used to retain Plaintiff in the SHU and release Plaintiff
from the SHU and back to ...