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Martin Vazquez, Cdcr #D-18168 v. George A. Neotti; Suglish

October 25, 2012

MARTIN VAZQUEZ, CDCR #D-18168, PLAINTIFF,
v.
GEORGE A. NEOTTI; SUGLISH; B. KOEN; R. DAVIS; JANNUSH;
SANCHEZ; HUBERT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P.12(b) [ECF No. 57]

I. PROCEDURAL BACKGROUND

Martin Vazquez ("Plaintiff"), a prisoner currently incarcerated at Calipatria State Prison located in Calipatria, California, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 11, 2011. Currently, Plaintiff is proceeding with his Fourth Amended Complaint ("FAC") which was filed on June 5, 2012. [ECF No. 26.]

Defendants Davis, Koen, Neotti, Sanchez, Suglich, Hubert and Jannusch have filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)*fn1 . [ECF No. 57.] Plaintiff has filed his Opposition to Defendants' Motion. [ECF No. 59.] The Court has determined that Defendant's Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Peter Lewis is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).

II.

FACTUAL ALLEGATIONS

On February 3, 2010, Plaintiff was housed in Administrative Segregation ("Ad-Seg") at the Richard J. Donovan Correctional Facility ("RJD"). (See FAC at 4.) Plaintiff was also a participant in the psychiatric program. (Id.) On this date, Plaintiff had a physical altercation with his cellmate which led to Sergeant Payne*fn2 using pepper spray to break up the fight. (Id.) Plaintiff claims that he lost two of his front teeth and had additional injuries to his spine. (Id.) Plaintiff further alleges that all documents and reports related to this incident were destroyed in violation of policies by the California Department of Corrections and Rehabilitation ("CDCR"). (Id.)

Plaintiff was later moved to an "overflow" building with inmate Chris Macias. (Id.) Plaintiff claims Defendant Hubert would pass by their cell on several occasions and make "punching motions and say go on fight." (Id.) Plaintiff contends these actions by Defendant Hubert caused tension between him and Inmate Macias who were both participants in RJD's psychiatric program. (Id.) Several days later while both Plaintiff and Inmate Macias were being escorted to the yard, Plaintiff alleges Defendant Hubert "squeezed" his arm and used other body language to indicate that Plaintiff should attack Inmate Macias. (Id.) As both Plaintiff and Inmate Macias arrived "at the cages," Plaintiff alleges Inmate Macias "attacked me, punching me in the mouth." (Id.) Plaintiff defended himself and both inmates were pepper sprayed to break up the fight. (Id.) Plaintiff claims he was not given medical treatment for his injuries from the fight. (Id.) Plaintiff provided a statement to Sergeant Payne and later told Defendant Suglich of the misconduct by correctional officers. (Id.)

On March 19, 2010, Plaintiff claims Defendant Koen "forced" him into a cell with Inmate Garcia. (Id. at 5.) As soon as both inmates had their handcuffs removed, Plaintiff and Inmate Garcia began "striking one another." (Id.) Correctional officers used pepper spray to break up the fight and both were taken to the showers for decontamination. (Id.) Later, Defendant Davis came to take Plaintiff to another cell and housed him with Inmate Vega. (Id.) It is not clear from Plaintiff's allegations but it appears as though he had another altercation with Inmate Vega. (Id.) Plaintiff alleges Defendants Koen, Suglish, Davis and other correctional officers were setting up "gladiator fights" among inmates. (Id.) Plaintiff further alleges Correctional Office Cota "admonished [Defendant] Koen about his conduct." (Id.)

Plaintiff appeared before the Institution Classification Committee ("ICC") and "made [his] grievances known." (Id.) Plaintiff alleges that he informed the ICC about the "staff brutality," the "inappropriate" actions of the correctional officers in Ad-Seg and the lack of an adequate response by Defendant Suglich other than to tell Plaintiff to file a grievance. (Id.) Plaintiff contends he has filed to number of grievances to which he has "suffered reprisals." (Id.) Plaintiff alleges that correctional officers Clark and Armstead came to his cell to inform him that Defendant Koen was "making them send [Plaintiff's] property home or destroyed." (Id.) As a result, Plaintiff claims Defendant Koen "destroyed 16 years" of his property in response to Plaintiff filing grievances. (Id.)

On April 20, 2010, Plaintiff was informed by Defendant Davis that he would be getting another cellmate. (Id. at 6.) Plaintiff informed Defendant Davis that he was supposed to have a single cell in light of all the past incidents. (Id.) Plaintiff claims Defendant Davis told him "you know you can't refuse!" (Id.) Plaintiff was escorted by Defendant Davis, at which time Plaintiff alleges Defendant Davis gave Plaintiff a weapon and said "this time make it good, we are moving you in the cell of that piece of shit Lewis Osborn." (Id.) Plaintiff was taken back to his cell to remove his property, then was escorted again by Defendant Davis to the cell of Inmate Osborne who had been handcuffed by Defendant Jannusch. (Id.) After both Plaintiff and Inmate Osborne were uncuffed, Plaintiff "sliced both sides of [Inmate Osborne's] face." (Id.) Plaintiff alleges he was then taken to the showers for decontamination where he alleges Defendant Davis told him "you're going to eat good tonight." (Id.) Defendant Davis then asked for the weapon back which Plaintiff returned. (Id.) Plaintiff claims that correctional officers destroyed all the reports relating to this incident but he was given a rules violation report ("RVR"). (Id.)

Plaintiff alleges he suffers from a "bulging disc" and a "pinched sciatic nerve." (Id. at 7.) He had been prescribed neurotine, robaxin, and ibuprofen in February of 2010 but he ran out of this medication in May of 2010. (Id.) Plaintiff was taken to an outside hospital for a consultation where a doctor indicated that he was not a candidate for surgery but he should receive additional medication. (Id.) When he returned to the prison, Plaintiff informed Defendant Sanchez, a nurse, about the recommendation. (Id.) Defendant Sanchez informed Plaintiff that she would schedule him for a visit to the prison hospital but she failed to do so. (Id.) In addition, Plaintiff submitted several slips to remind her of the need for medication but she "ignored" Plaintiff. (Id.) Plaintiff claims that he suffered from withdrawals when he ran out of his medication in May of 2010 and was unable to sleep or "walk in comfort." (Id.) Plaintiff "fell down in the cages/yard" and had to be carried back to his cell but was never seen by medical staff. (Id.) Plaintiff alleges that he was told that he would not obtain medical attention because correctional officers were retaliating against him for filing grievances. (Id.)

Plaintiff was transferred to a facility in El Centro so he could attend court. (Id.) Plaintiff was examined by a neurologist who "immediately" agreed to "reinstate the old medication." (Id.) Several months later, Plaintiff was examined ...


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