The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON EXCESSIVE FORCE CLAIM AGAINST VALENCIA AND DEVER, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED THIRTY-DAY OBJECTION PERIOD
Findings and Recommendations Following Screening of Second Amended Complaint
Plaintiff Carlos Pena, a state prisoner proceeding pro se, filed this civil action on September 5, 2008, in Fresno County Superior Court. Plaintiff sought relief pursuant to under 42 U.S.C. § 1983 and California tort law, and Defendants Huckabay, Ericson, Tucker, Valencia, and Dever removed the action to this court on February 27, 2009. Plaintiff filed an amended complaint as a matter of right on July 24, 2009. Fed. R. Civ. P. 15(a). On September 1, 2009, the Court issued an order striking Plaintiff's amended complaint because it lacked Plaintiff's signature, and dismissing Plaintiff's original complaint for failure to state any claims under section 1983. Plaintiff filed a second amended complaint on September 18, 2009.
II. Screening Requirement
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).
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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
III. Summary of Facts*fn1
Plaintiff is incarcerated at Pleasant Valley State Prison in Coalinga, California, where the events complained of occurred. Plaintiff alleges that Defendants Huckabay, Ericson, Tucker, Valencia, Dever, Hanner, and Sillen acted with deliberate indifference to his serious medical needs and used excessive force against him, in violation of the Eighth Amendment; retaliated against him, in violation of the First Amendment; and committed the torts of assault, battery, and conversion under California law.*fn2
Plaintiff had surgery for an abdominal hernia on Friday, April 13, 2007, and had fifteen stitches at the surgery site. Plaintiff was prescribed Vicodin for pain relief, which he received over the weekend.
On Monday, April 16, 2007, at 7:30 a.m., Plaintiff asked Defendant Ericson, a correctional officer, to check on his pain medication because he was in extreme pain.*fn3 At 8:00 a.m., another inmate told Plaintiff that he would not be receiving breakfast or lunch because he did not have a layin.*fn4 Plaintiff asked for Defendant Ericson and inquired why he could not get breakfast or lunch. Ericson told Plaintiff he would have to go to the kitchen if he wanted to eat because he did not have a lay-in. Plaintiff explained he had surgery and should not be stressing his abdominal muscles, and asked her to consider that issuance of the lay-in may have been overlooked.
At 9:00 a.m., Plaintiff was begging for pain relief, but was told by Ericson that there would be no breakfast, lunch, or pain medication. Plaintiff asked if he could go to the infirmary to see the doctor about pain relief but was told no. At 9:30 a.m., Plaintiff fell to the floor and the alarm was sounded after another inmate yelled "man down." (Doc. 1, Comp., ¶5.) Custodial and medical staff arrived, and Ericson told them Plaintiff had been "giving her a problem all morning" and was "just trying to get pain medication." (Id., ¶6.) Defendant Hanner, a medical technical assistant/registered nurse, without examining Plaintiff or removing him from his cell, said there was nothing wrong with Plaintiff and stated his belief that Plaintiff was being manipulative. Everyone left, joking, "I've fallen and I can't get up."
At 1:15 p.m., Plaintiff was released for yard, went to the infirmary, and presented an emergency grievance stating that he was in pain and thought his staples had "busted loose." (Id., ¶8.)
Defendant Hanner told him to go home because there was no such thing as an emergency grievance, but RN Davis asked Plaintiff to the door after he told her that he thought his staples had broken loose. As Plaintiff was going in and Defendant Hanner was leaving for the day, Hanner said, "I've fallen and I can't get up." (Id., ¶9.) RN Davis let Plaintiff into the infirmary, where she cleaned his stomach and gave him his prescription medication.
On April 17, 2007, Plaintiff was ordered to report to the infirmary to see the doctor. His blood pressure, temperature, and pulse were taken, and he was told to wait outside for the doctor. Within approximately one minute, Plaintiff's wheelchair was grabbed and forcefully pushed from behind by Defendant Valencia, a correctional officer. Plaintiff yelled at her to stop several times because his feet were dragging, causing extreme pain because of the surgery and staples. Despite being begged to stop, Defendant Valencia continued to push Plaintiff's wheelchair.
Plaintiff contacted Defendant Huckabay, a sergeant, and told him what happened. Huckabay told Plaintiff that he would act like he did not hear it if Plaintiff wanted, but if Plaintiff pursued his complaint of abuse, Plaintiff was going to go to the hole.
While Plaintiff was waiting to see the doctor, Defendant Valencia came into the infirmary and stared at Plaintiff, asked if Plaintiff was going to pursue it or not, and stated that if so, she was going to pack up his stuff. Plaintiff replied that he did not think he should talk to her right now. Defendants Huckabay and Tucker, a correctional officer, had all the other inmates leave the area, and Tucker had Plaintiff strip down and place his personal items in a plastic bag. Tucker asked Plaintiff what hurt and when he said his staples, Tucker made joke after joke. Huckabay, along with another officer, took Plaintiff to an infirmary room and told Plaintiff it was his last chance to avoid the hole. Huckabay said that he wanted to review the videotape of the incident with Valencia, and then said Plaintiff was going to the hole. Defendants Tucker and Hanner, and others then tried to direct Plaintiff from the infirmary without seeing the doctor, but RN Davis said he should be seen. However, the doctor told Plaintiff to return to building one because they were not getting anywhere with custody staff interrupting.
Plaintiff was not able to wheel himself very fast, and in front of the law library, Defendant Dever, a correctional officer, grabbed the wheelchair and told Plaintiff to hold on because they were going to fly. Defendant Tucker yelled to Dever, "Oh, you lowered yourself. I wouldn't touch that chair." (Id., ¶17.) Dever pushed the chair hard after speeding it up and let it go, which caused Plaintiff's bare feet to drag on the ground. As it drifted toward the curb, Plaintiff had to stop it with his bare feet, causing injuries to his abdomen.
Plaintiff was placed in administrative segregation by Defendants Huckabay and Valencia, which he alleges was in retaliation against him for complaining he had been assaulted by staff and was ...