FINDINGS AND RECOMMENDATION TO DISMISS SOME CLAIMS AND ALLOW ) CASE TO PROCEED ON OTHER CLAIMS
Plaintiff Cedric Allen ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On February 2, 2005, Plaintiff filed the original complaint. (Doc. 1). On March 29, 2006, Plaintiff filed the first amended complaint. (Doc. 8). On August 15, 2008, the first amended complaint was dismissed with leave to amend. (Doc. 17). On September 23, 2008, Plaintiff filed the second amended complaint. (Doc. 18). On March 18, 2010, Plaintiff was ordered to either submit an amended complaint or proceed on the cognizable claims. (Doc. 20). On June 4, 2010, Plaintiff filed the third amended complaint which is presently before this Court. (Doc. 25).*fn1
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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
III. Plaintiff's Third Amended Complaint
Plaintiff is a state prisoner at Centinela State Prison in Imperial, California. The acts he complains of occurred at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. In the third amended complaint, Plaintiff names Correctional Officer J. Rivera, Correctional Officer McVay, Beattles, Correctional Officer T. Quillen, Correctional Officers John Does I through V, Sergeant R. Beer, Sergeant F. Munoz, Sergeant J. Martinez, Dr. W. Felin, Correctional Counselor S. Rocha, Correctional Counselor D. Cano, Associate Warden Sheppard Brooker, and Captain L.L. Lowden as defendants in this action. Plaintiff seeks compensatory and punitive damages in addition to declaratory and injunctive relief. (Doc. 25, Third Amended Complaint at 5-6, 18).
On June 4, 2004, Plaintiff kicked Defendant J. Rivera. (Doc. 25 at 6). Plaintiff was dragged to the ground by Rivera and Defendant T. Quillen. (Doc. 25 at 6). Plaintiff was then hit repeatedly on the head with a long metal key and Defendant Rivera sprayed mace in Plaintiff's face several times. (Doc. 25 at 6-7). Plaintiff did not resist the assault and was lying down in a prone position while in handcuffs. (Doc. 25 at 7). Rivera and Quillen punch and kneed Plaintiff then dragged Plaintiff to a rotunda where several unknown officers slammed Plaintiff into a wall, repeatedly punched and kneed Plaintiff. (Doc. 25 at 7). While still handcuffed, officer John Doe I bent Plaintiff's fingers back and officer John Doe II pulled Plaintiff's jumpsuit and stringed-necklace so tight that it was choking Plaintiff. (Doc. 25 at 7). Plaintiff repeatedly indicated to the officers that he was choking. (Doc. 25 at 7). At that point Defendant R. Beer grabbed Plaintiff by the throat and choked him for forty to fifty seconds and stated 'Now you can't breath,' then released grip on Plaintiff. (Doc. 25 at 8).
Then Defendant F. Munoz attempted to get Plaintiff to open his mouth so that Munoz could spray mace in Plaintiff's mouth. (Doc. 25 at 8). Plaintiff resisted and Munoz sprayed mace in Plaintiff's face. (Doc. 25 at 8). Defendant McVay then struck Plaintiff in the face with a closed fist and slammed Plaintiff to the ground, chipping his two front teeth and causing his top denture to fly out of his mouth. (Doc. 25 at 8). The top tooth cut clear through Plaintiff's bottom lip creating a small pool of blood. (Doc. 25 at 8). While Plaintiff was still handcuffed, McVay began to grind his knee into the left side of Plaintiff's jaw while officer Moles placed Plaintiff into leg restraints. (Doc. 25 at 8-9).
McVay and another officer John Doe III then picked Plaintiff up off the ground and slammed him into a pillar of concrete, fracturing Plaintiff's forehead. (Doc. 25 at 9). Plaintiff was dragged into the shower by McVay and Doe III forced Plaintiff's face to tilt upward into the shower water, making water fill Plaintiff's nostrils and rendering Plaintiff unable to breathe for over forty-five seconds. (Doc. 25 at 10). When Plaintiff was taken out of the shower, Defendant Beattles ordered Doe IV and Doe V to place a spit mask over Plaintiff's head. (Doc. 25 at 10-11). As Plaintiff's nose was clogged with mucous and since blood from his lip was saturating the mesh spit mask, Plaintiff told Beattles that he could not breathe through the spit mask. (Doc. 25 at 10-11). Defendant Beattles replied 'If you are talking, you are breathing.' (Doc. 25 at 11). Plaintiff had to take shallow breaths in order to breath through the mask. (Doc. 25 at 11).
On June 8, 2004, Plaintiff alleges that Defendant W. Felin removed several stitches from Plaintiff's bottom lip prematurely. (Doc. 25 at 11). Plaintiff claims that this was done deliberately to cause Plaintiff pain. (Doc. 25 at 11). Plaintiff informed Felin that the doctor who originally sewed the stitches stated that the stitches would not be ready to come out until after ten days and that removing the stitches on day four would be too early. However, Felin ignored Plaintiff. (Doc. 25 at 11-12). Plaintiff claims that Felin used an oversized pair of scissors and after two or three failed attempts, Felin used a small plastic scalpel to remove the stitches, which caused the procedure to take a considerable amount of time and caused intentional tearing of the skin. (Doc. 25 at 12). On June 29, 2004, it was discovered that Defendant Felin neglected to remove one remaining stitch and a nurse removed it painlessly. (Doc. 25 at 12). Plaintiff claims a "life long scar" developed on his bottom lip because the stitches were removed prematurely which caused his skin to tear. (Doc. 25 at 12).
Plaintiff claims that other prison staff relentlessly retaliated against Plaintiff in revenge for Plaintiff kicking and allegedly breaking the ribs of Rivera. (Doc. 25 at 13). Specifically, Defendants
S. Rocha, D. Cano, D. D. Sheppard-Brooks, L. L. Lowden, and J. Martinez refused to release Plaintiff from the security housing unit ("SHU") when his eighteen month term expired and without reason, imposed an ...