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 FOR USE OF EXCESSIVE FORCE, AND AGAINST DEFENDANT YATES FOR FAILURE TO PROTECT PLAINTIFF, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE IN 30 DAYS
I. RELEVANT PROCEDURAL HISTORY
William Sutherland ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), 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 December 11, 2009. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on November 12, 2010, requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed on the claims found cognizable by the Court. (Doc. 14.) On December 6, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 15.)
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 is only required to 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 SECOND AMENDED COMPLAINT
Plaintiff is currently a state prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Correctional Officer ("C/O") A Fernando, C/O M. Jericoff, James Yates (Warden, PVSP), and Lieutenant R. Lantz.
Plaintiff alleges as follows. On May 26, 2009, Plaintiff stood in the afternoon pill call line for about fifteen minutes, when defendant C/O A. Fernando split the line, causing Plaintiff to be placed near the end of the line. It was a hot day and Plaintiff was not feeling well, due to chronic back pain and heat sensitivity, so Plaintiff sat down at a nearby table to await his turn. C/O Fernando approached Plaintiff, and Plaintiff told C/O Fernando he (Plaintiff) was not feeling well. C/O Fernando instructed Plaintiff to get back in the line. Plaintiff then tried to explain about his back pain and heat sensitivity, but C/O Fernando again told Plaintiff to get back in the line. Plaintiff again tried to explain, and C/O Fernando told Plaintiff to stand with his hands behind his back. Plaintiff complied, and C/O Fernando placed handcuffs on Plaintiff and became extremely aggressive, shoving Plaintiff's arms up and pulling Plaintiff's water bottle out of his pocket and smashing it on the ground. C/O Fernando yelled to approaching defendant C/O M. Jericoff, "We have a piece of shit here," and Plaintiff responded, "You are not allowed to talk about inmates like that." C/O Fernando told Plaintiff to shut up and pushed Plaintiff's arms up so high that Plaintiff feared they would break. Plaintiff told C/O Fernando that he (Plaintiff) had a bad shoulder, but C/O Fernando continued to lift Plaintiff's arms, and Plaintiff was forced to lock his arms to prevent his shoulder from being dislocated. Plaintiff cooperated with both of the officers and did not resist.
Plaintiff asked to speak to Internal Affairs, but C/O Fernando and C/O Jericoff became extremely violent and continued pushing Plaintiff's arms up. On the way to the Program Office, the officers continued to shove Plaintiff's arms up. At the Program Office, the officers slammed Plaintiff's face into the wall and swept Plaintiff's legs out from under him, causing him to hit the concrete chin-first. Plaintiff kept crying out that he wasn't resisting and that he wanted to see Internal Affairs. While Plaintiff was on the ground, C/O Fernando twisted Plaintiff's left leg until Plaintiff cried out in pain. Plaintiff was pulled up by his wrists, and C/O Jericoff stomped on Plaintiff's right kidney and said in a threatening manner, "Do you still want to see Internal Affairs?" Plaintiff responded, "No, please, I am not resisting you, please!" Finally, Plaintiff was yanked up and placed into a cage with his right handcuff so tight that it cut into his wrist, causing it to bleed. All of the officers in the Program Office refused to loosen the handcuffs for a long time. When a medical employee came to make a report, an officer told Plaintiff he should just say he had a bad day. Plaintiff was sent to his cell and confined for three days.
Plaintiff was found guilty of a 115 rules violation, even though the video of the incident clearly showed the officers' reports to be false. The officer who oversaw the hearing, Lt. R. Lantz, viewed the video and ignored what it showed and refused to allow Plaintiff to call all of his witnesses. Lt. Lantz allowed Plaintiff to submit only three questions, yet wrote that "subject nor SHO had no further questions for witness. Witness was excused."
Warden James Yates knew that C/O Jericoff was a violent predator who was being investigated by Internal Affairs for a long pattern of abuses involving excessive use of force, and Warden Yates failed to prevent C/O Jericoff from having contact with inmates, resulting in Plaintiff's injury. The Warden also failed to properly train and supervise C/O Jericoff.
Plaintiff requests money damages and court and ...