The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS OBJECTIONS DUE WITHIN 21 DAYS
Plaintiff David Battiste ("Plaintiff"), a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on May 18, 2011. Doc. 1. On December 9, 2011, the Court screened Plaintiff's complaint and found that it stated a claim against Defendants Cooper, Baez, and Benavidez for violation of the Eighth Amendment, but failed to state a claim against Defendants Lopez and Canales. Doc. 19. Plaintiff was provided the opportunity to either file a first amended complaint curing the deficiencies in his claims, or notify the Court that he wished to proceed only against Defendants Cooper, Baez, and Benavidez. On December 21, 2011, Plaintiff notified the Court that he wished to only proceed against Defendants Cooper, Baez, and Benavidez. Doc. 20. The Court thus issues the following Findings and Recommendations.
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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
III. Summary Of Complaint
Plaintiff is incarcerated at California State Prison, Corcoran, where the events giving rise to this action occurred. Plaintiff names Warden Raul Lopez, Sergeant D. Canales, Correctional Officer H. Baeza, Correctional Officer S. Cooper and Correctional Officer Benavidez as Defendants.
Plaintiff alleges that on September 28, 2010, he was in his assigned cell when Defendant Benavidez approached and asked him if there was a problem. Plaintiff was unaware at the time that his cell mate, Inmate Roche, had told Defendant Benavidez and others that he would assault Plaintiff if he was returned to his cell.
Plaintiff told Defendant Benavidez that there were no problems. Inmate Roche was then escorted back to the cell by Defendants Cooper and Baeza, who spoke to Inmate Roche in "low tones" as they reached the door to the cell. As soon as Defendant Benavidez stepped aside, Inmate Roche "rushed into the cell and brutally assaulted Plaintiff." Plaintiff alleges that his head crashed into the wall and that he suffered head trauma as a result. He alleges that he suffered, and/or continues to suffer, severe headaches, blurred vision, loss of concentration and lapses in memory.
Plaintiff contends that Defendants Benavidez, Cooper and Baeza allowed the assault to continue for several minutes. Defendant Baeza eventually pepper-sprayed them and a majority of the pepper-spray hit Plaintiff in the face.
After the assault, Plaintiff spoke with Inmate Roche. Inmate Roche said he told Defendants Cooper and Baeza that if they forced him to go back into his cell, he would assault Plaintiff.
Plaintiff alleges that shortly after the assault, Defendant Canales stated that it may be possible for Inmate Roche and Plaintiff to "sign off on the assault" so that they could both stay on the yard. Plaintiff further alleges that Defendant Canales overheard Inmate Roche say that he would be a witness against ...