The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE GRANTED OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Valentine E. Underwood ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on Plaintiff's original complaint, filed July 17, 2008, against defendants Northcutt and Martin for retaliation in violation of the First Amendment, and against defendants Northcutt, Martin, Caviness, Lantz, Trujullo, Truitt, and Fambrough for use of excessive force in violation of the Eighth Amendment.*fn1
On July 21, 2010, defendants Lantz, Fambrough, Northcutt, Truitt and Trujillo ("Defendants") filed a motion to dismiss this action for failure to exhaust remedies. (Doc. 54.)
Plaintiff filed an opposition on September 20, 2010, and Defendants filed a reply on September 24, 2010. (Docs. 61, 62.) Defendants' motion is now before the Court.
II. SUMMARY OF PLAINTIFF'S COMPLAINT*fn2
Plaintiff's allegations arise from incidents that occurred while he was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, and California Correctional Institution ("CCI") in Tehachapi, California.
On November 20, 2006, Plaintiff filed an inmate appeal against Officer Hart for making threatening statements against him. Plaintiff alleges that on November 21, 2006, Defendants Northcutt and Martin approached Plaintiff because they wanted to know why Plaintiff had been talking to Lieutenant Whitehead the previous day. Plaintiff told Defendants Northcutt and Martin that he told Lieutenant Whitehead he was having difficulty with some of the officers, including Defendants Northcutt and Martin, since filing the appeal against Officer Hart. Defendant Northcutt then pepper sprayed Plaintiff and hit him in the face with the pepper spray can. Defendant Martin struck Plaintiff repeatedly with his baton. Plaintiff tried to hit back and then lay down on the floor on his stomach. Defendants Northcutt and Martin continued to kick and punch Plaintiff. Plaintiff alleges that Defendants Caviness, Lantz, Trujillo, Truitt, and Fambrough also kicked and struck him. Plaintiff was pepper sprayed again, had a bag pulled over his head, and then was handcuffed.
Lieutenant Whitehead instructed two officers to escort Plaintiff to the clinic, where Dr. Dileo had Plaintiff's head, left hand, and ribs x-rayed. Dr. Dileo also cleaned a bite wound on Plaintiff's right hand, gave him a tetanus shot, and sutured the area above Plaintiff's right eye. Dr. Dileo gave Plaintiff some painkillers and a vest to wear over his rib area. Plaintiff alleges that he also had a swollen left hand, fingers and wrist; lumps all over his head; scratches and abrasions on his lower back; and bruises all over his body. He also bled from the cut above his right eye, from his nose, and from his right hand. Plaintiff alleges that he suffered from blurred vision, lower back pain, and nose bleeds as a result of the assault.
Plaintiff filed an inmate appeal on November 29, 2006, regarding the November 21, 2006 attack. The appeal was ultimately rejected as being untimely. Plaintiff was subsequently found guilty of battery on a peace officer, and he filed an appeal for being denied a fair hearing regarding the November 21, 2006 incident.
Plaintiff alleges that for several days after November 24 or 25, he asked for medical care because his injuries caused him pain, but did not receive any medical care except for some painkillers from MTA Ethridge on November 29, 2006. Plaintiff was seen by Dr. Akano on December 13, 2006, at which time he told Dr. Akano that he was suffering from blurred vision, and lower back pain, and that the bite on his right hand had become infected. After examining Plaintiff, Dr. Akano told Plaintiff that he was in good health and prescribed painkillers and a cream. Plaintiff continued to seek additional medical care. On January 31, 2007, Dr. Akano prescribed Plaintiff some painkillers for his lower back pain, and ordered another x-ray of Plaintiff's back. On February 6, 2007, Plaintiff had his lower back x-rayed.
Plaintiff alleges that Captain Frauenhein approached him on November 23 or 24, 2006, to see his injuries and to inform him that he would be transferred to avoid such an incident in the future. Plaintiff alleges that Defendant Frauenhein told him that Plaintiff's statement regarding the November 21, 2006, incident was consistent with other witnesses' statements.
Plaintiff alleges that Captain Frauenhein and Captain Tyson approached him on February 1, 2007, to inform him that they knew what had actually happened on November 21, 2006, but that he was to be placed in the Security Housing Unit ("SHU") for eight months for assaulting staff, after which he would be transferred elsewhere. Plaintiff alleges that the usual term for assaulting staff is twelve months to eighteen months, but Associate Warden Arlitz agreed with Captains Frauenhein and Tyson, and gave him an eight month term, mitigated to six months.
On February 4, 2007, Plaintiff filed an inmate appeal after having his incoming and outgoing mail disappear, and after finding that Defendant Northcutt had been reassigned to the mail room after the November 21, 2006, incident.
On March 13, 2007, Plaintiff was transferred to CCI. After Plaintiff arrived at CCI, he was referred to a nerve specialist for the bite on his right hand, to an orthopedic surgeon for injuries to his right hand and right elbow, and for physical therapy for lower back pain.
Plaintiff seeks monetary damagesas relief.
III. UNENUMERATED RULE 12(b) MOTION TO DISMISS FOR ...