The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EIGHTH AMENDMENT EXCESSIVE FORCE CLAIM THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff Quillie L. Harvey ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the Magistrate Judge handling all matters in this action. ( ECF No. 4.) Plaintiff initiated this action on December 16, 2010. (Compl., ECF No. 1.) Plaintiff's Complaint is currently before the Court for screening. The Court finds Plaintiff's Complaint states a cognizable claim for excessive force under the Eighth Amendment, but fails to state any other cognizable claim.
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, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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.
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff is a state prisoner currently incarcerated at Pelican Bay State Prison. The incidents alleged in his Complaint however occurred at Wasco State Prison ("Wasco").
Plaintiff brings this action for excessive force under the Eighth Amendment and for due process violations under the Fourteenth Amendment. Plaintiff also alleges violations of state law and the California Constitution.*fn1 Plaintiff names the following individuals as defendants: 1) A. Ayala, a correctional officer at Wasco, 2) D. Martinez, a correctional officer at Wasco, 3) C. Villanueva, a lieutenant at Wasco, 4) L. Gresham, a lieutenant at Wasco, 5) B. Covey, a captain, and 6) S. Swenson, a control booth or tower officer. Defendants are sued in their individual and official capacities.
Specifically, Plaintiff alleges as follows:
On August 30, 2010, Plaintiff was being transferred from Salinas Valley State Prison to Centinella State Prison. (Compl. at 5.) The transport vehicle stopped at Wasco for the night and Plaintiff was assigned to a cell with cell-mate who was an "other." (Id. at 5-6.) An "other" is an individual of a race other than white, African-American, or Hispanic. (Id.) The assigned cell-mate would not let him into the cell, and he informed Plaintiff that the prison was not housing African-American prisoners with "others." (Id.)
Plaintiff informed Defendant Ayala of the situation and advised that Plaintiff could not be housed with an "other" because he was in prison for killing an "other."(Compl. at 6.) Defendant Ayala told Plaintiff that if he did not go voluntarily to the assigned cell, Defendant Ayala would beat and pepper spray him. (Id.) Plaintiff went outside of the office, and Defendant Ayala approached him with a can of pepper spray. (Id.) Plaintiff said he would talk to his assigned cell-mate. Plaintiff returned to his assigned cell with Defendant Ayala. (Id.) At the assigned cell, Defendant Ayala placed the pepper spray against Plaintiff's face, and lunged at Plaintiff. (Id.) Plaintiff ran to Defendant Martinez, the other correctional officer on duty. (Id.) As he was running, Defendant Ayala sprayed Plaintiff's back with pepper spray. (Id.) Plaintiff then laid down in the prone position. (Id.) At that point, Defendant Martinez approached Plaintiff. (Id.) Defendants Ayala and Martinez spoke to each other, and Defendant Martinez sprayed the whole canister of pepper spray in Plaintiff's face. (Id.) Defendant Ayala also hit Plaintiff in the back. (Id.) Plaintiff was dragged out of the building, placed in handcuffs, and taken to a cage in front of the program office. (Id.) Plaintiff could barely breathe and he vomited. (Id.)
Plaintiff immediately made videotaped allegations to Defendant Villanueva about this excessive force, and said that Defendants Ayala and Martinez were falsely claiming Plaintiff had assaulted Defendant Ayala. (Compl. at 7.) Defendant Villanueva said that a bruise on Plaintiff was an old one and was not a result of any abuse from the altercation with Ayala. (Id.) Plaintiff advised that everyone in D-Facility witnessed the incident, although Plaintiff did not know their names and numbers. (Id.) Defendant Villanueva did not interview any witness. (Id.) Plaintiff also wrote a written statement that night, and offered in it to take a polygraph test. (Id.)
After the interview, Plaintiff was taken to Administrative Segregation. (Compl. at 7.) His body was burning, and he could not open his eyes. (Id.) He vomited many times. (Id.)
At Plaintiff's 114 hearing, Plaintiff told Defendant Gresham that he was still suffering from the after effects of the pepper spray. (Compl. at 7.) Defendant Gresham said he had read Plaintiff's written statement, that Plaintiff's allegations would be investigated, and that Plaintiff would remain in Administrative Segregation while the investigation went on. (Id.) Neither Defendant Gresham nor anyone else ever investigated Plaintiff's allegations. (Id.)
Plaintiff continued to suffer after-effects of the pepper spray. (Compl. at 7.) Plaintiff could not eat or drink for the next several days. (Id.) Plaintiff's vision stayed blurry, and he eventually had to be prescribed contact lenses. (Id. at 8.) Plaintiff's vision remains poor. (Id.) Plaintiff also has been diagnosed with a hernia caused by the vomiting he suffered from being pepper sprayed. (Id.)
On September 6, 2010, Plaintiff wrote a staff complaint, detailing his allegations. (Compl. at 8.) On September 22, 2010, Plaintiff wrote a Complaint against Defendants Villanueva, Gresham, and Covey for their failure to investigate Plaintiff's allegations. (Id.) Hearing nothing ...