The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ON THE FIRST AMENDED COMPLAINT AGAINST DEFENDANTS MASIEL, AGUIRRE, SULLIVAN, DOES 1-4, MARTINEZ, BAER, MELO, MENDOZA, DAVIS, JUNG-HERNANDEZ, ADAME, AND PRICE ON PLAINTIFF'S EIGHTH AMENDMENT CLAIMS, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 19.) OBJECTIONS, IF ANY, DUE IN 30 DAYS
Kevin E. Fields ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 3, 2009 in the Sacramento division of the Eastern District of California, and the case was transferred to the Fresno division of the Eastern District of California on August 12, 2009. (Docs. 1, 3.) The Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and entered an order on February 11, 2010, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 16.) On March 16, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 19.)
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)). While a plaintiff's allegations are taken as true, 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).
To state a viable claim for relief, Plaintiff must set forth sufficient 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. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants James Tilton (Secretary, CDCR), Correctional Officer ("C/O") J. Masiel, C/O A. Aguirre, C/O D. Sullivan, C/O T. Jung-Hernandez, C/O M. Melo, C/O J. M. Velasco, John Doe 1 (ISU Squad C/O), John Does 2, 3, and 4 (3rd Watch C/Os), Sergeant A. Baer, Sergeant J. M. Martinez, Captain B. Davis, Captain B. Flores, D. Price (LVN), Garnett (RN), Raul Lopez (Associate Warden, CSP), Maurice Junious (Chief Deputy Warden, CSP), Derral G. Adams (Warden, CSP), Jennifer Jones
(CCII Appeals Coordinator), C. Lesniak (CCII Appeals Coordinator), C/O Adame, C/O Robles and Mendoza ("Defendants"). Plaintiff requests monetary damages, declaratory relief, injunctive relief, and attorney fees and costs.
Plaintiff alleges as follows. On September 14, 2007 at 8:30 a.m., Plaintiff was escorted to the law library by C/O Aguirre and C/O Jung-Hernandez, where he delivered documents to Library Assistant Guzman to be copied and then was placed in a study cage. At 11:30 a.m., C/O Aguirre and C/O J. Masiel approached the study cage and told Plaintiff his time was up. Plaintiff gathered his books in a pillowcase, was placed in restraints, and was taken to retrieve his copies. While Guzman was talking on the phone, Plaintiff leaned forward and yelled to Guzman that he needed his copies. Masiel got angry because Plaintiff leaned forward and told Plaintiff to exit the law library. Plaintiff objected, arguing that he didn't want to leave without his copies, and Masiel pushed Plaintiff, leaned towards his face and said, "Nigger, what are you going to do?" Plaintiff replied to Masiel that if Masiel put his hands on him again, he would find out what he was going to do. Masiel snatched Plaintiff's pillowcase out of his hands and pushed Plaintiff in the chest, causing him to stumble backwards. Plaintiff kicked Masiel's leg, which caused Masiel to back out of the law library. Plaintiff turned to retrieve his books and other belongings which had fallen from the pillowcase. C/O Aguirre approached Plaintiff, and Masiel re-entered the law library with his pepper spray in hand, shouted "Grab that fucking nigger and hold him," and started spraying Plaintiff. Plaintiff started to donkey-kick Masiel to stop Masiel from hitting him in the back of the head with the pepper-spray can. C/O Aguirre yelled that Masiel had sprayed him (Aguirre) in the face, and Plaintiff was slammed to the concrete floor, where Aguirre sat on his upper back and shoulders while Masiel and C/O D. Sullivan kicked Plaintiff in the ribs and shouted out racial slurs. Sgt. Baer told Masiel, Sullivan and Aguirre to drag Plaintiff outside, which they did while continuing to verbally abuse Plaintiff.
Ten to fifteen minutes later, Sgt. Baer told Masiel and Aguirre, "Get this black-ass piece of shit off the ground and take him to the building and put his ass in a holding cell." Masiel and Aguirre snatched Plaintiff up off the ground in a very violent manner, re-injuring Plaintiff's surgically-repaired neck, and escorted him across the grass to his assigned housing unit, continuing to make racial slurs and threats which were overheard by other inmates. As he was escorted into the housing unit dayroom, Plaintiff told Masiel and Aguirre in a loud voice that they had injured his ribs and his surgically-repaired neck. Masiel responded, "Shut the fuck up, nigger, you're lucky we didn't kill your black ass for snitching on the Sharks, you fucking rotten piece of shit."
C/O Robles electronically opened the shower door, and Masiel guided Plaintiff into the shower. At first the water was cold, and then it suddenly turned hot. When Plaintiff attempted to step out of the hot water, Masiel grabbed his arm and held him so he couldn't move. Plaintiff yelled loudly, "Why are you holding me under hot water!" expecting Robles to turn off the water or Aguirre to intervene, but Masiel said, "Shut your fucking mouth, nigger, and just sue me. I don't give a shit." About twenty seconds later, Plaintiff was removed from the shower and aggressively escorted to a holding cell. Plaintiff told Sgt. Baer, C/O Jung-Hernandez, C/O Melo, and a nurse that Masiel had held him for twenty seconds under hot water, and that Plaintiff's penis, testicles and anus were burning from the pepper spray. He asked them to allow him to take a cold shower to decontaminate. They laughed at him and refused to allow him to decontaminate.
At approximately 11:45 a.m., C/O Adame and C/O Doe 1 arrived, and Plaintiff explained the morning events to them, but they said they didn't care and collected Plaintiff's tennis shoes and took photos to use as evidence in court against him. Plaintiff told them he would file a complaint against them for deliberate indifference, and C/O Adame told Plaintiff he would have to exhaust his administrative remedies first, and his chances of that were slim-to-none. Adame and Doe 1 laughed at Plaintiff and left.
At approximately noon, Plaintiff explained the morning events to LVN Price and asked her to tell custody staff to put him back in the shower so he could properly wash off the pepper spray, and to have him escorted to the doctor for the injuries to his ribs and neck. She refused. Then she filed a false medical report stating that Plaintiff had no injuries and that he was decontaminated.
When the Third Watch came to work, Plaintiff's skin was still burning from the pepper spray. Plaintiff asked Does 2, 3, and 4 to put him in the shower and notify the LVN so he could receive medical treatment, but they refused. Plaintiff asked to see the Sergeant, and Sgt. Boyer came and asked him what happened. Plaintiff explained, and Sgt. Boyer told Does 2, 3, and 4 to put Plaintiff in the shower for fifteen to twenty minutes so he could properly decontaminate. Sgt. Boyer left, and Does 2, 3, and 4 escorted Plaintiff to his cell and forced him to wait until 6:30 p.m. for a shower. After three minutes in the shower, C/O J. M. Velasco turned off the water and told Plaintiff his time was up. Because Plaintiff did not have enough time to decontaminate, his entire body was now burning from the pepper spray dripping from his hair. Fifteen to twenty minutes later, Does 2 and 3 escorted Plaintiff to his cell. Plaintiff told them told them the water was turned off after three minutes and his entire body was burning, and they replied, "So, what do you want us to do about it?" and started laughing. Plaintiff asked them to notify the Sergeant, but they refused, told him to file a request for an interview, and left, laughing.
At 8:00 p.m., LVN Valencia brought Plaintiff pain medication for his neck. Plaintiff asked Valencia to complete a medical report of his injuries, but she refused because the injury had occurred during Second Watch. She also refused Plaintiff's request to ask custody staff to return him to the shower.
On September 15, 2007, during breakfast distribution, C/O Masiel assaulted Plaintiff's cell mate by slamming the trays into his hand. When Plaintiff asked Masiel why he assaulted the cell mate, Masiel loudly responded, "Because he's just like you, just a dumb-ass nigger."
On September 16, 2007, at approximately 8:00 a.m., Sgt. J. M. Martinez came to Plaintiff's cell and called him names, telling Plaintiff he had made a big mistake by assaulting a Shark, and that he was going to initiate a chrono to place Plaintiff's "black ass" in leg-iron restraints whenever he left his cell. Plaintiff told Martinez that as a Sergeant, he did not have the authority to restrict Plaintiff. Martinez said he didn't care about the SHU operational procedures, and he would be placing Plaintiff in leg-iron restraints for ninety days. Plaintiff wrote a letter complaining to CDCR Secretary James Tilton about Defendants' conduct, but Tilton did not respond.
On the morning of September 18, 2007, Masiel distributed breakfast trays and sack lunches to Plaintiff and his cell mate. One of the sack lunches was missing the bag of Nacho Cheese Doritos. Plaintiff told Masiel about the Doritos, but he ignored Plaintiff and continued passing out trays. When Masiel returned to pick up the trays, Plaintiff again told him about the missing Doritos. ///
Masiel responded loudly, "It looks like only one of you niggers will be eating Nacho Cheese Doritos today, unless one of you has the heart to take the bag from the other one."
At approximately 8:30 a.m., during morning yard release, C/O Dowdy and defendant Masiel approached Plaintiff's cell and told Plaintiff if he wanted to go out on the yard, he would have to go to the concrete yard, because he had assaulted Masiel. Plaintiff denied assaulting Masiel and told Dowdy that Plaintiff was the one being threatened. Dowdy started laughing and told Plaintiff that he had the rest of his life in prison to try and prove any of that. Plaintiff was placed in waist chains and leg irons in preparation for going to the exercise cages. Masiel applied the leg irons so tight that Plaintiff screamed out. Masiel told Plaintiff to get up and start walking. Plaintiff told him the leg irons were too tight, and Masiel told Plaintiff to shut up, quit acting like a bitch, and walk faster, or he would get his ass slammed for resisting. When they arrived at the exercise cage, Plaintiff showed Sgt. Martinez that his ankles were swollen and ...