The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART (Doc. 52.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Rahn G. Thompson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2007. (Doc. 1.) This action now proceeds with the Second Amended Complaint filed on November 10, 2009, against defendant Tucker for subjecting Plaintiff to adverse conditions of confinement; against defendants Tucker, Green, Lee, Rincon, Hernandez, Deathridge, and Huckabay for failing to protect Plaintiff; against defendants Tucker, Green, and Huckabay for retaliating against Plaintiff; and against defendants Tucker, Thompson, and Melendez for using excessive force against Plaintiff.*fn1 (Doc. 25.)
On September 27, 2011, defendants Deathridge, Green, Hernandez, Huckabay, Lee, Melendez, Rincon, Thompson, and Tucker ("Defendants") filed a motion to dismiss for failure to exhaust administrative remedies under Rule 12(b), and failure to state a claim for retaliation under Rule 12(b)(6).*fn2 (Docs. 52-58.) On November 21, 2011, Plaintiff filed an opposition to the motion.*fn3 (Doc. 61.) On December 6, 2011, Defendants filed a reply to Plaintiff's opposition and objections to Plaintiff's evidence. (Docs. 66, 67.) On February 1, 2012, Plaintiff filed an opposition to Defendants' objections. (Doc. 71.) Defendants' motion to dismiss is now before the Court.
II. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently a state prisoner at High Desert State Prison in Susanville, California. The events at issue in the Second Amended Complaint allegedly occurred at Pleasant Valley State Prison ("PVSP") in Coalinga, California, while Plaintiff was incarcerated there. Plaintiff names as defendants Sergeant ("Sgt.") N. Green, Sgt. D. Huckabay, RN Ms. Davis, Med Tech Mr. Chapman, and Correctional Officers ("C/O"s) W. Tucker, D. Thompson, J. Melendez, M. Hernandez, M. E. Rincon, T. Lee, Deathridge, and H. Martinez.*fn4
Plaintiff alleges as follows in the Second Amended Complaint.
Failure to Protect While Plaintiff was incarcerated at Pelican Bay State Prison, he became aware that he would be a victim of an attack by another inmate. After an investigation, prison officials determined that Plaintiff should be removed from the general population and housed in administrative segregation under safety watch. Plaintiff continued to receive death threats and was placed on single-cell status under protective custody watch. On November 22, 2005, the Institution Classification Committee decided that Plaintiff should be transferred to a sensitive needs yard at another prison and should remain on single-cell status.
In December 2005, Plaintiff was transferred to PVSP. When it became known that Plaintiff was at PVSP, he was threatened with attacks. Plaintiff immediately informed C/O Tucker, Sgt. Green, and Sgt. Huckabay and requested to be placed in protective custody. Plaintiff informed C/O Tucker, Sgt. Green, and Sgt. Huckabay of the written documentation in Plaintiff's prison records, to make them aware of Plaintiff's need for safe protective housing. Plaintiff alleges that all of the named defendants deliberately refused to consider Plaintiff's safety concerns.
In January 2006, Plaintiff was assaulted by a Crips gang member as he was exiting the shower. Plaintiff filed a 602 prison complaint, an investigation was conducted, and the appeals examiner confirmed that Plaintiff was defending himself. C/O Tucker, Sgt. Green, and Sgt. Huckabay became very angry about Plaintiff's complaints about his safety and told him he would get "dealt with." Shortly thereafter, Plaintiff was removed from his single cell and ordered by C/O Tucker to share a cell with a known Bloods gang member. C/O Tucker ordered Plaintiff to keep his mouth shut. Plaintiff's records contain documentation that he should not be housed with any Crips or Bloods gang member, or any Radical Muslim. Defendants C/O Tucker, Sgt. Green, Sgt. Huckabay, C/O Hernandez, C/O Rincon, C/O Deathridge, and C/O Lee were repeatedly informed by Plaintiff of his safety issues and concerns, but they all refused to provide Plaintiff with safe housing. Plaintiff continued to file complaints requesting to be placed in protective custody, but no one would listen or help him. He was finally removed from the cell, but only for a short period.
In October 2006, C/O Tucker ordered Plaintiff to accept a Radical Muslim inmate as a cell mate. Plaintiff again informed C/O Tucker that he would be in grave danger, begged C/O Tucker not to force him to be housed with a documented enemy, and repeatedly requested protective custody. C/O Tucker left and returned with several other officers and loudly ordered Plaintiff to follow orders. Plaintiff protested, informing C/O Tucker that he had been attacked by two of the Muslim inmate's associates at Pelican Bay State Prison. C/O Tucker pushed Plaintiff aside and told the Muslim inmate to enter his cell. Shortly thereafter, when Plaintiff was asleep, his cell mate assaulted him, resulting in Plaintiff being taken to the prison infirmary.
Later in October 2006, Plaintiff was ordered by C/O Lee to move into another building and share a cell with inmate Miller. Plaintiff emphatically informed C/O Lee that inmate Miller was his enemy, an active Bloods gang member, and that there was documentation in Plaintiff's file showing he should not be housed with a Bloods gang member. C/O Lee refused to show concern for Plaintiff's safety and told Plaintiff he would "throw [Plaintiff's] ass in the Hole if [Plaintiff didn't] get out of his sight." (2d Amd Cmp ¶21.) Plaintiff informed C/O Lee that the inmate who attacked him a few weeks ago was housed in the other building, and made C/O Lee aware of the documentation in his file. C/O Lee ignored Plaintiff's concerns. As Plaintiff was moving to the other building, he was approached outside by inmate Miller who said, "Nigga I don't want you in my cell." (2d Amd Cmp ¶23.) The two inmates argued and were separated by other inmates before a fight started. Sgt. Green said they "should've fought and then Thompson's ass would have been thrown in the Hole." (2d Amd Cmp ¶24.) Plaintiff pleaded with Sgt. Green for his safety, but Sgt. Green ignored him and ordered him to enter the building.
Plaintiff entered the building but refused to enter the cell. He approached the floor officer C/O Deathridge and told him about the dangerous enemy situation with inmate Miller and the earlier assault by the Muslim inmate. Plaintiff also told C/O Deathridge about the documentation in his file. C/O Deathridge made a phone call, and afterward C/O Tucker arrived, moved inmate Miller's property from the bottom bunk to the top bunk, and ordered Plaintiff to move in. Plaintiff refused to enter the cell. He approached floor officers C/O Rincon and C/O Hernandez, informed them about his two enemies in the building, and asked to be housed in another building. C/O Hernandez pushed Plaintiff into the cell and shut the cell door. Plaintiff continued to complain about his situation to the defendants. Sgt. Green told him, "Handle it, Thompson." (2d Amd Cmp ¶34.) On November 14, 2006, inmate Miller attacked Plaintiff, stabbed him twice, cut Plaintiff's neck and eye, and stabbed him in the left arm.
Adverse Conditions of Confinement and Excessive Force
C/O Tucker knew Plaintiff needed his medically-ordered orthopedic knee brace and cane, but on October 5, 2006*fn5 he forcefully took the brace and cane and destroyed the brace. C/O Tucker then ordered Plaintiff to "get to your building now!" (2d Amd Cmp ¶37.) The building was more than two hundred yards away. Plaintiff asked C/O Tucker to give him back the medical devices, but he refused and told Plaintiff that if he didn't get going, he would be thrown in the Hole. Plaintiff obeyed and limped the long distance. Upon entering the building, Plaintiff's knee gave out and he fell to the floor. Plaintiff cried out in pain and begged for help. C/O Tucker grabbed Plaintiff's arms, dragged him across the floor, and threw him into the cell. Plaintiff complained to C/O Tucker, Sgt. Green, and Sgt. Huckabay that he was in severe pain, but he was not allowed to see a doctor until a few weeks later.
The doctor examined Plaintiff. Plaintiff informed the doctor that C/O Tucker had taken away his medical devices. The doctor told Plaintiff that his knees had been further damaged by walking without the brace and cane. The doctor immediately ordered the return of Plaintiff's devices and said he should wear soft-soled shoes. The doctor told Med Tech Chapman and RN Davis that no prison guard should ever take away any of Plaintiff's medical devices, and C/O Tucker's actions were not acceptable. RN Davis and Med Tech Chapman questioned C/O Tucker, who admitted he took Plaintiff's brace and intentionally destroyed it, claiming he felt Plaintiff did not need a knee brace.
Additional Excessive Force
On November 14, 2006, inmate Miller attacked Plaintiff, stabbed him twice, cut Plaintiff's neck and eye, and stabbed him in the left arm. That same night, C/O Thompson and C/O Melendez sprayed Plaintiff in his eyes, nose, and mouth, and across his upper torso with an unknown gas and chemicals, which burned Plaintiff terribly. C/O Thompson and C/O Melendez then grabbed Plaintiff and handcuffed his hands in back, disregarding Plaintiff's disability and limited mobility. C/O Thompson and C/O Melendez dragged Plaintiff, still cuffed, more than 250 feet across concrete, rocks, gravel, grass and dirt. At one point, C/O Melendez cursed at Plaintiff, and both officers threw him to the ground. Plaintiff begged them to stop the assault, but they continued to drag him until his pants and underwear came off and he was completely exposed. Several officers, including two female officers C/O Rincon and Ms. Magee, laughed loudly at him, and Ms. Magee picked his underwear up off the ground.
As a result of this attack, Plaintiff suffered severe and constant pain in his neck, back, shoulders, left knee, and head. Plaintiff was taken to the doctor who found that the officers had damaged and ruptured several discs in Plaintiff's neck and back. The doctor ordered Plaintiff to use a wheelchair and told Plaintiff, in the presence of several nurses, that he should be careful because another attack could put him in a wheelchair permanently.
Plaintiff filed many 602 complaints for being denied safe housing, and C/O Tucker, Sgt. Green, and Sgt. Huckabay became very angry about Plaintiff's complaints about his safety and told him to "keep [his] mouth shut" and that he would be "dealt with." (2d. Amd Cmp ¶61.) Plaintiff alleges that Sgt. Green, Sgt. Huckabay, and C/O Tucker retaliated against him for filing complaints when they repeatedly removed him from his cell and forced him to share a cell with known enemy gang members.
III. DEFENDANTS' EVIDENTIARY OBJECTIONS
Defendants have filed evidentiary objections to Plaintiff's evidence in support of his opposition to the motion to dismiss. (Doc. 67.)
A. Evidence Not Used by the Court
Defendants object to the following evidence on various grounds. However, the Court did not rely on any of this evidence in making these findings and recommendations. Therefore, Defendants' objections to the evidence listed immediately below are overruled.
(1) Letter to Pearlie Mae Bell (Doc. 61 at 37, Ex. A #2.)
(2) Letter from Pearlie Mae Bell (Doc. 61 at 38-39, Exh. A #3-4.)
(3) Nov. 27, 2005, Inmate Request for Interview (Doc. 61 at 40-41, Exh. A #5-6.)
(4) Handwritten Notes (Doc. 61 at 42, Exh. A #7.)
(5) Letter from Ombudsman Lonnie Jackson (Doc. 61 at 45, Exh. B #10.)
(6) Compatibility Chrono (Doc. 61 at 69, Exh. F #33.)
(7) November 21, 2006 Statement of Facts (Doc. 61 at 89-92, Exh. G #55-58.)
(8) Handwritten Notes dated November 19, 2006 (Doc. 61 at ...