The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On June 7, 2011, defendants Deur and Shockley filed a motion to dismiss*fn1 on the grounds that the second amended complaint ("SAC") fails to state cognizable claims under the Eighth Amendment, and that defendants are entitled to qualified immunity. On July 26, 2011, defendant Sisto filed a motion to dismiss on the grounds that the SAC fails to state a cognizable Eighth Amendment claim, and that defendant Sisto is entitled to qualified immunity. For the reasons set forth below, the undersigned recommends that both motions be granted.
II. Plaintiff's Second Amended Complaint
Plaintiff is proceeding on the SAC filed February 22, 2010, against sixteen defendants, alleging three separate causes of action. (Dkt. Nos 23 (SAC); 25 (Order) at 3.)*fn2
Defendants Traquina, Freeman, Singh, Eck, Cate, Gentry, Dechant, Nuerhring, and Greer have filed an answer. (Dkt. No. 36.) Defendants Shockley, Sisto, and Deur filed motions to dismiss.
On July 23, 2006, plaintiff was ordered to cuff up and, after cuffing up, plaintiff alleges Correctional Officer Sillivan became aggressive, so plaintiff ran toward staff and camera coverage, allegedly for plaintiff's safety due to the isolated area in which plaintiff was cuffed. (Dkt. No. 23 at 5.) Plaintiff alleges he stopped in front of the "B" control booth, at which time Sillivan, running full speed, allegedly "tackled plaintiff and knocked him face down to the ground with the full weight of [Sillivan's] body." (Id.) While plaintiff was laying on the ground, plaintiff alleges defendant Freeman "ran over and did a 'knee-drop' with the full weight of his body on the plaintiff's back and shoulder causing instant pain." (Id.)
After the staffs' alleged use of force (dkt. no. 23 at 58-59), plaintiff was escorted to the primary clinic to be medically cleared for placement in administrative segregation ("ad seg"). (Dkt. No. 23 at 62.) Plaintiff alleges defendant Deur, a Registered Nurse, interviewed plaintiff about his injuries, and [plaintiff] informed Deur he sustained back injuries and numbness. She failed to evaluate, treat or document plaintiff's injuries on 7219 medical form and simply disregarded his injury complaint with no intention of providing plaintiff any medical care. Plaintiff described the pain in the back and shoulder but couldn't describe numbness. Ex. D-17.
(Dkt. No. 23 at 6.) Exhibit D-17 is a copy of defendant Deur's medical report of injury, dated July 23, 2006, which states no injuries were found, plaintiff was ambulatory, and that plaintiff's statement of the circumstances of the injury or unusual occurrence was "don't know how to describe it." (Dkt. No. 23 at 96.) Using the 24 hour clock, the report of injury reflects that the alleged incident occurred at 1630, and that defendant Deur was notified at 1643, saw plaintiff at 1644, and released plaintiff at 1645, with the notation "Cleared for housing per custody." (Id.)
Plaintiff acknowledges he was then placed on contraband surveillance watch ("CSW")*fn3 "for possession of concealed contraband," (dkt. no. 23 at 6), beginning on July 23, 2006, through August 4, 2006, during which plaintiff alleges he was "tortured." (SAC at 4-5.) Plaintiff was placed in an administrative segregation cell and was restrained to a bunk on his back by four-point leather restraints. (SAC at 6.) Plaintiff was clothed in only boxer shorts until July 27, 2006, when defendant Nuehring ordered Correctional Officer Jones to put plaintiff in a jumpsuit, which plaintiff contends was too small. (SAC at 7.)
During the CSW, plaintiff alleges he was subjected to the following conditions: continuous exposure to air conditioning; insufficient bedding, which consisted of one thin sheet; insufficient clothing, which was only one pair of boxer shorts until July 27, 2006, when plaintiff was provided a jumpsuit that was allegedly too small and cut off plaintiff's circulation; extremely limited exercise; constant exposure to light and noise; and limited movement during sleep. (SAC at 6-7.) Plaintiff alleges he suffered back and neck pain, delusions and anxiety, high blood pressure and high cholesterol, stress and sleep deprivation. (SAC at 7.) On August 4, 2006, plaintiff allegedly suffered an onset of paraplegia of the lower extremities requiring plaintiff's evacuation by helicopter to the John Muer Medical Center in Walnut Creek, California. (SAC at 12.)
Further, plaintiff alleges that on July 27, 2006, defendant Sisto headed an ad-seg committee meeting at plaintiff's cell door, while plaintiff "lay spread eagle in boxer shorts." (SAC at 8.) Plaintiff alleges that on July 27, 2006, defendant Shockley "came to the cell door to observe plaintiff," and on July 28, 2006, defendant Shockley led a "tour of numerous officials of both genders as plaintiff lay secured to a bunk on display." (SAC at 8.)
Plaintiff also alleges defendant Sisto "promulgated and endorsed a
4-point restraint immobilization intensive observation CW
policy/procedure to investigate plaintiff for possession of concealed
contraband," citing prison disciplinary RVR S1-06-08-0393.*fn4
6.) The appended prison disciplinary, Log No. SOL 07-0123, dated
February 26, 2007, reflects defendant Sisto signed a second level
appeal response addressing plaintiff's claims that his due process
rights were violated during the July 29, 2006, hearing on the rules
violation report ("RVR"), Log S1-06-07-0393, and that the RVR was
false. (Dkt. No. 23 at 24.) Defendant Sisto denied the appeal.
In connection with the defendants who have moved to dismiss plaintiff's claims herein, pursuant to the court's March 26, 2010 order, plaintiff stated a viable cause of action against defendants Sisto and Shockley for unlawful conditions of confinement (Claim II), and against defendant Deur for deliberate indifference to a serious medical need (Claim III). (Dkt. No. 25 at 3.)
IV. Legal Standards - Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se ...