The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS THIRTY DAY OBJECTION DEADLINE (ECF No. 37)
FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF THIRD AMENDED COMPLAINT
On October 13, 2006, Plaintiff Frank Gonzales, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 (ECF No. 1.) Plaintiff's original Complaint was dismissed on November 16, 2006 for failure to state a claim. (ECF No. 11.) Plaintiff was given leave to amend, and filed an Amended Complaint on December 4, 2006. (ECF No. 13.) The Court dismissed Plaintiff's Amended Complaint on May 2, 2008 for failure to state a claim. (ECF No. 22.) Plaintiff was again given leave to file an amended complaint, and Plaintiff's Second Amended Complaint was filed on July 29, 2008. (ECF No. 27.) The Court found that Plaintiff had set forth a cognizable excessive force and deliberate indifference claim and it gave Plaintiff leave to amend if he wished to attempt to replead his remaining claims. (ECF No. 29.) Plaintiff filed his Third Amended Complaint on December 24, 2009, which is now the operative pleading in this case.*fn2
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). "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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir.1987).
In his Third Amended Complaint, Plaintiff alleges that his Eighth Amendment rights were violated through the use of excessive force, the failure to provide adequate medical treatment, and adverse prison conditions. Plaintiff also alleges that his First Amendment rights were violated when he was retaliated against for filing grievances about prison officials and communicating with the media and public officials about an in-cell murder. Each of Plaintiff's claims will be addressed in turn below.
Plaintiff alleges that Defendants Phillips, Lantz, Nichols, Govea, Deathriage, Sierra, Garrison, Milam, Roberts, and Clark violated his Eighth Amendment right to be free from excessive force during a cell extraction on September 30, 2005. (Third Am. Compl. 7, ECF No. 37.)
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations omitted). For claims of excessive physical force, the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Although a de minimis use of force does not violate the Constitution, the malicious and sadistic use of force to cause harm always violates the Eighth Amendment, regardless of whether or not significant injury is evident. Id. at 9-10; Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).
Plaintiff alleges that Defendants Phillips and Nichols attempted to remove Plaintiff and his cellmate, Jason Saunders, from their cell on September 30, 2005. Plaintiff and Saunders requested the presence of a lieutenant before they would exit. Defendants Lantz, Govea, Deathriage, Garrison, Milam, Roberts, and Clark responded to assist with the cell extraction. Upon the arrival of the additional officers, Plaintiff removed the covering from his cell window and informed Defendants that he would cooperate and exit the cell without resistance if a lieutenant was present. Instead of summoning a lieutenant, Defendants discontinued the power, water, and ventilation to Plaintiff's cell. Defendant Sierra then opened the cell door. Defendants Lantz, Garrison, and Nichols entered and sprayed Saunders and Plaintiff with three full canisters of pepper spray. Defendants' deployment of the pepper spray required Plaintiff to be treated with oxygen. (Third Am. Compl. at 8.)
Taking the facts pled by Plaintiff as true, the Court finds that Plaintiff's allegation that Defendants Lantz, Garrison, and Nichols deployed three full cans of ...