The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 22) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
Plaintiff Hosam Kaddoura is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 27, 2012, Plaintiff's complaint was dismissed, with leave to file an amended complaint within thirty days that complied with the Federal Rules of Civil Procedure. (ECF Nos. 1, 21.) Plaintiff filed a first amended complaint on September 21, 2012. (ECF No. 22.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
Plaintiff brings this action against thirteen defendants at Sierra Conservation for Center ("SSC") alleging deliberate indifference to serious medical needs and conditions of confinement, excessive force, and failure to protect in violation of the Eighth Amendment, retaliation in violation of the First Amendment, due process in violation of the Fourteenth Amendment, violations of the Americans With Disabilities Act ("ADA"), and medical malpractice under state law.
A. Plaintiff's First Cause of Action
On April 8, 2010, Defendant Bickell attempted to have Plaintiff moved to an upper tier dorm. Plaintiff showed Defendant Bickell his medical chronos for lower tier, lower bunk accommodations. Plaintiff claims that while he was complying with the orders of Defendant Bickell, Defendant Bickell took him to his knees and landed on Plaintiff's back. Plaintiff states that he suffered two fractured ribs, displacement of his rib cage, and knee and back injuries. Plaintiff alleges Defendant Bickell used excessive force in violation of the Eighth Amendment. (Am. Compl. 7, 18,*fn1 ECF No. 22.)
B. Plaintiff's Second Cause of Action
On October 8, 2010, Defendants Bogle, Bergthold, and two other officers surrounded Plaintiff and began cursing at him in an attempt to provoke Plaintiff by claiming that he had ignored the Plaza Officer's instructions. Plaintiff was handcuffed and searched. As Defendant Bergthold was escorting Plaintiff, Defendant Bergthold pushed Plaintiff causing him to almost lose his balance. Plaintiff turned around and told Defendant Bergthold not to push him. Defendant Bergthold took Plaintiff to the ground and an unknown officer twisted Plaintiff's leg. Plaintiff claims he suffered a fractured ankle and febula, and severe knee and back injuries. Plaintiff alleges that Defendants Bogle and Bergthold used excessive force in violation of the Eighth Amendment. (Id. at 8, 18.)
C. Plaintiff's Third Cause of Action
After Plaintiff was injured during the incident on October 8, 2010, he was examined by Defendant Bangi. Defendant Bangi examined Plaintiff's leg and did not order an x-ray or prescribe pain medication despite the fact Plaintiff was in pain. Plaintiff's leg was swollen and he was in pain by the time he arrived at administrative segregation. Plaintiff requested to be seen by a doctor and a nurse submitted a request, which was denied. Plaintiff begged for pain medication during his one week stay in administrative segregation and it was denied. Plaintiff received an x-ray on October 15, 2010, which showed that his ankle and febula were fractured. (Id. at 9.)
On the fourth or fifth day that Plaintiff was in administrative segregation an unknown nurse, Defendant Doe, saw Plaintiff and told him that she would authorize pain and anti-inflammatory medications immediately and would order an x-ray. Plaintiff did not receive an x-ray until several days later and pain medication until a doctor prescribed it on October 18, 2010. Plaintiff alleges that Defendants Bangi and Doe exhibited deliberate indifference to serious medical needs under the Eighth Amendment and medical malpractice under state law. (Id. at 10, 19.)
D. Plaintiff's Fourth Cause of Action
After Plaintiff was involved in the use of force incident involving Defendant Bickell on April 8, 2010, Plaintiff was placed in administrative segregation and celled with inmate Raymond Rodriguez, who was in administrative segregation because he broke another inmate's nose. Plaintiff requested that he be moved from the cell because inmate Rodriguez was mentally unstable, dangerous, and threatening. Plaintiff told Defendant Calhoun that he wanted to be moved at an Institutional Classification Hearing on April 15, 2010.
On several occasions, Plaintiff asked Defendant Darbi and other correctional personnel to move him. Plaintiff submitted an inmate appeal that was denied, included his request in a petition to Toulome County Superior Court, and told his psychiatrist and psychologist about the danger, but was not moved. On March 14, 2010, Plaintiff was attacked by inmate Rodriguez and his left ear was injured. Plaintiff reported the attack on May 17, 2010, and Defendant Darbi moved him to another cell. Plaintiff alleges Defendants Calhoun and Darbi were deliberately indifferent to his safety in violation of the Eighth Amendment. (Id. at 11, 20.)
E. Plaintiff's Fifth Cause of Action
After being released from administrative segregation on July 8, 2010, Defendant Gilmore placed Plaintiff in a cell with the "southsiders gang". Defendant Gilmore moved one of the gang members to another dorm and gave Plaintiff the "whole rack (2 beds)." The gang members got angry and threatened to harm Plaintiff if he did not move out of the dorm. Plaintiff told Defendants Calhoun, Allen, and Gilmore about the threat and they refused to move Plaintiff. After four days, Plaintiff was moved to another dorm. Plaintiff alleges that Defendants Gilmore, Calhoun and Allen placed his life in danger and were deliberately indifferent to his safety violating their duty to protect him. (Id. at 12, 20.)
F. Plaintiff's Sixth Cause of Action
In March 2011, Plaintiff had a reclassification hearing with Defendants Calhoun and Spatola. Plaintiff had received a medical endorsement to be moved to San Quentin due to his breathing problems. Defendant Calhoun went against the advice of his medical providers and cancelled the endorsement and endorsed Plaintiff to remain at SSC. Plaintiff alleges Defendant Calhoun was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (Id. at 13, 21.)
G. Plaintiff's Seventh Cause of Action
In May 2011, Plaintiff had a meeting with Defendants Spatola and Bird to restore time credits that he had lost. They refused to restore Plaintiff's time credits and retaliated against Plaintiff by extending his disciplinary period and finding Plaintiff ineligible for non-revocable parole, falsely claiming Plaintiff had a serious violent felony on his record. The decision was appealed and overturned. Plaintiff alleges that Defendants Spatola and Bird's action constituted cruel and unusual punishment in violation of the Eighth Amendment. (Id. at 14, 21.)
H. Plaintiff's Eighth Cause of Action
In April 2010, while housed in administrative segregation, Plaintiff submitted an ADA request due to a chest problem caused by hot weather. Plaintiff's request was denied and he submitted an appeal. Plaintiff's appeal was referred to Defendant Quinn who denied his request based upon an allegedly false medical chrono issued by Defendant Forster that stated Plaintiff was in good health, while other chronos had been issued by other doctors recommending Plaintiff be transferred due to his breathing problems. Plaintiff alleges that Defendant Quinn's actions violated ...