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Lacedric W. Johnson v. D.K. Sisto

May 7, 2012

LACEDRIC W. JOHNSON, PLAINTIFF,
v.
D.K. SISTO, WARDEN, ET AL., DEFENDANTS.*FN1



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On January 27, 2012, defendant Noriega filed a motion to dismiss on the grounds that the second amended complaint ("SAC") fails to state cognizable claims under the Eighth Amendment, and that defendant Noriega is entitled to qualified immunity. For the reasons set forth below, the undersigned recommends that defendant Noriega's motion be granted in part and denied in part. ////

II. Plaintiff's Second Amended Complaint

Plaintiff is proceeding on the SAC filed February 22, 2010, alleging three separate causes of action. (Dkt. Nos 23 (SAC); 25 (Order) at 3.) Defendants Traquina, Freeman, Singh, Eck, Cate, Gentry, Dechant, Nuerhring, and Greer filed an answer. (Dkt. No. 36.)

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.) After plaintiff was briefly seen by defendant Deur, a Registered Nurse, plaintiff was "Cleared for housing per custody." (Dkt. No. 23 at 96.)

Plaintiff acknowledges he was then placed on contraband surveillance watch ("CSW")*fn2 "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, after being confined to restraints for eleven days, plaintiff was released from the four point restraints and allegedly placed in the middle of the cell, naked. (SAC at 11.) After defecating, plaintiff allegedly suffered an onset of paraplegia of the lower extremities. (SAC at 11-12.) Defendant Gentry pushed his emergency button, and numerous officers and medical staff rushed into plaintiff's cell, lifting plaintiff onto a gurney, and rolled him twenty feet to ad seg medical. (SAC at 12.) Plaintiff was "evaluated by Dr. A. Noriega." (SAC at 12.) Plaintiff alleges that defendant Noriega received approval from A. Traquina to have plaintiff flight-evacuated by helicopter to the John Muer Medical Center in Walnut Creek, California. (SAC at 12.) Plaintiff alleges that

[f]rom July 23, 2006 through August 4, 2006, plaintiff made dozens [of] complaints of pain to CSW officers and medical staff. [Defendants] A. Noriega and Dechant were medical staff assigned to ad seg, totally ignored plaintiff's request for medical care and walked past [plaintiff's] open door cell daily.

(SAC at 12.)

In December 2006, plaintiff allegedly informed defendant Noriega that plaintiff had "blood in his tarry stool." (SAC at 15.) On December 18, 2006, a fecal occult blood test was performed on plaintiff's stool, which tested positive. (Id.) Plaintiff was scheduled to have a colonoscopy on July 6, 2007, but it was cancelled and rescheduled to November 2007. (SAC at 16.) Plaintiff does not allege injury or damages as a result of the delayed colonoscopy, but claims the doctor who performed the colonoscopy ...


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