The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM AND (2) AMENDED COMPLAINT BE SERVED AS TO REMAINING PARTIES (Doc. 21) THIRTY-DAY OBJECTION DEADLINE
Plaintiff Andrew R. Lopez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on September 10, 2010. On March 8, 2012, the Court screened Plaintiff's complaint and ordered him to either file an amended complaint or notify the Court of his willingness to proceed only on his cognizable claims. Plaintiff filed an amended complaint on March 23, 2012.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
While 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, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (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 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
A. Summary of Allegations*fn1
Plaintiff, who is currently incarcerated at California State Prison-Corcoran (Corcoran) in the Security Housing Unit, brings this action against the following defendants for violating his rights in 2008 and 2009 at Corcoran: former California Department of Corrections and Rehabilitation (CDCR) Director Mathew Cate; former Warden R. Lopez; former Warden Derral G. Adams; Sergeants D. Beer, J. Martinez, A. Olmedo, and M. Drew; Lieutenants C. Munoz and S. Rousseau; Captain and Associate Warden F. P. Fields; Correctional Counselor M. White; Correctional Officers R. Zamora, V. Espinosa, M. Jackson, R. Garcia, and Casillas; M. Gray, a nurse; and Does 1-100. Plaintiff seeks damages, declaratory relief, and injunctive relief for the violation of his civil rights under the First Amendment, the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and under California law.
Plaintiff is an active jailhouse lawyer and vigorously defends his civil rights via the filing of prison grievances and lawsuits, including a suit against Defendants Yale and Drew in which Plaintiff alleges he prevailed.*fn2 Plaintiff's litigation activities, which began in 1993, are well-known to prison staff and as a result, not all held him in kind regard.
Against this backdrop, Plaintiff alleges that on October 30, 2008, at approximately 8:00 a.m., he was escorted to the Acute Care Hospital (ACH) on the prison grounds for an MRI of his spine. Plaintiff alleges that he was intentionally kept at the ACH until approximately 1:40 p.m. to enable Defendants Casillas, Garcia, Martinez, Beer, Rousseau, and Fields to orchestrate a retaliatory housing transfer from 4B-4L, where he was actively engaged in assisting other inmates with their litigation, to 4B-4R. Plaintiff's MRI was completed by 9:00 a.m. and during the time Plaintiff was held at the ACH, the transportation bus made two trips from the ACH to 4B-4L and Plaintiff overheard the ACH control booth officer comment, "The 154 (a move slip) is cut [and] they're moving his property now." (Amend. Comp., ¶12.)
Plaintiff was then taken to cell 24 in 4B-4R. Plaintiff's property was there but some legal work was missing. During the next six hours, staff ignored Plaintiff's repeated demands to speak with a supervisor, including during cell counts, yard exchanges, supply and meal distribution, and medication rounds, and despite Plaintiff covering his cell window, which is considered a safety issue requiring a response from supervisory staff.
Another inmate later told Plaintiff that Defendant Garcia asked him for a favor on October 30, 2008, and told him that "they needed to move a jackass jailhouse lawyer to 4R[,] where Garcia could curb [his] complaint filing and law library access." (Id., ¶14.)
On the same day, Defendant Olmedo ordered the confiscation of Plaintiff's property for ten days, which included Plaintiff's legal property, prescription glasses, shoes, medication, and all linen and clothing except for one pair of boxer shorts, socks, a t-shirt, a towel, and a sheet.
Plaintiff had been issued a medical chrono directing that he be restrained in waist chains rather than cuffed with his hands behind his back due to his spinal injuries. Despite the chrono, which Plaintiff alerted them to, Defendants Zamora and Espinosa cuffed his hands behind his back and escorted him to the 4B-4R rotunda holding cage. Defendants left Plaintiff in the holding cage for hours in handcuffs while other officers confiscated his property, despite his pleas that his hands and shoulders were numb and he was having severe back and right leg pain. At one point, each officer grabbed one of Plaintiff's hands and pulled them through separate bar slots in the cage. They then pulled down and out and twisted, causing Plaintiff to slam into the bars repeatedly and to suffer excruciating pain. Plaintiff was then removed from the holding cage and told to kneel on a chair, and his boxer shorts were cut off. Plaintiff lost his balance at one point and his right foot went out. Defendant Zamora stomped on it and told Plaintiff that should take his mind off his back. During these events, Defendants Munoz and Olmedo were present but they failed to intervene.
Approximately five minutes later, someone said to get Plaintiff a pair of boxer shorts and Defendant Munoz stated, "Dirty shorts." Thereafter, Defendant Jackson slipped a pair of boxer shorts over Plaintiff's feet and Defendants Zamora and Espinosa pulled them on Plaintiff. Plaintiff later discovered the boxer shorts were old and dirty, and had dried feces and blood all over the rear.
While Plaintiff was in the rotunda area, he advised Defendants Drew, Olmedo, and Munoz that per his medical order, he was to be restrained in waist chains and the handcuffs were causing him severe pain and numbness. Plaintiff also stated he needed his medication, his glasses, his medically prescribed shoes, and his missing legal work.
Defendant Drew said Plaintiff was telling the wrong guy because Plaintiff had named him in a lawsuit; Plaintiff should stop his "rambling legal bullshit," which is what got him moved; and Drew was sticking by his men. (Id., ¶23(a).) Defendant Olmedo said he did not care because Plaintiff frequently complained and filed paperwork. Defendant Munoz said Plaintiff did not "have shit coming," admitted that Plaintiff got moved for filing complaints, and said he intentionally waited to respond so that he could earn overtime pay toward his boat payment and for Plaintiff to sue him because he viewed his defense by the Attorney General's Office against inmate suits as a tax refund. (Id., ¶23(c).)
During medication distribution at 4:30 p.m. and 7:30 p.m., Plaintiff told Defendant Gray, a nurse, to summon a psych tech and she refused. Plaintiff also told her about his prescriptions, pain, and injuries, to ensure the removal of his handcuffs, and to make sure his medications, glasses, and shoes were not withheld, but she refused and aided in the "code of silence." (Id., ¶27.)
Defendants Zamora and Espinosa subsequently escorted Plaintiff to cell 24 in 4B-4R. As they approached, Plaintiff's eyes began to burn and water, and he could see chemical agent dripping down the cell walls. Plaintiff slowed his pace and told Defendants the cell was uninhabitable. Defendant Zamora propelled him into the cell by twisting and pushing on the handcuffs and stated, "Yale says it is. You're going in. File on that." (Id., ¶29.) The door was closed and Defendant Zamora then pulled on Plaintiff's handcuffs several times, banging Plaintiff into the door. Although they were outside the cell, the fumes were making Defendants Zamora and Espinosa choke, but they left Plaintiff in the cell anyway.
Plaintiff's eyes shut and watered nonstop as he choked and laid on the floor against the gap under the door, gasping for air. An officer conducting count shortly thereafter saw Plaintiff's condition and removed him from his cell. Plaintiff was taken to the rotunda, where his eyes were still watering and he could not open them. Plaintiff could not breathe properly, mucus was streaming from his mouth and nose, his head pounded, his hands were numb, and his shoulders and back were in severe pain. Plaintiff thought he was going to die and as he sat there, he heard a male voice say to let him air out because they could not let the hospital see him like this, to get him a paper towel, and to air the cell out. The same person asked if anyone cleaned the cell out before putting him in there and a second male voice said he did not know, that it was third watch.
After Plaintiff aired out in the rotunda for a while, he was taken to the hospital. The trip was about three miles and Plaintiff was aired out along the way in the cold night air. Plaintiff sat in the hospital for about an hour, further airing out, before seeing a doctor.
The next morning, Plaintiff was taken to see an ophthalmologist for an eye examination. Plaintiff was still without his eyeglasses, shoes, or clothing except for the dirty boxer shorts, and he stubbed his toe and cut his left foot along the way. Plaintiff alleges that other inmates were staring and making comments and the whole experience was humiliating, degrading, and inhumane.
Plaintiff was later told by two witnesses that the cell had not been decontaminated properly. Plaintiff repeatedly requested his prescriptions, clothing, linens, and legal work, but he was told that the sergeant said no. Plaintiff finally received his eyeglasses and orthopedic shoes at 9:00 p.m. on October 31, 2008.
Plaintiff alleges that he was deprived of a towel and soap until November 3, 2008, and he was deprived of toilet paper, a toothbrush, and tooth powder until November 6, 2008.
Plaintiff began a hunger strike on October 31, 2008, to protest the withholding of his legal work. The strike lasted until November 10, 2008, during which time Plaintiff lost thirteen pounds.
On November 7, 2008, Plaintiff was escorted to the program office, where he explained to Defendants Fields and White that he was on a hunger strike because his legal property had been confiscated and he had deadlines to meet, he was being denied linens and clothing, which precluded him from attending yard, and the cell was freezing. Defendant Munoz was also present and when Plaintiff finished speaking, Defendant Fields looked at Defendant Munoz, who blamed Defendant Rousseau. However, Defendant Fields and White failed to take any action.
Housing staff still refused to give Plaintiff his legal property back and on November 9, 2008, Defendant Rousseau came by Plaintiff's cell and said, "Fuck you. Starve to death. Your legal bullshit is why I agreed to move you in the first place." (Id., ¶42.)
On November 10, 2008, Defendants Rousseau and Martinez each placed CDC form 128Bs (informational chronos) in Plaintiff's central file. Plaintiff alleges the chronos contain false, misleading information, subjected him to an additional thirty days of property deprivation, and were and will continue to be used against him during his parole hearings. Plaintiff alleges that the chronos were issued in retaliation against him for complaining on November 7, 2008. On November 10, 2008, Plaintiff was allowed to obtain his legal property relating to a court deadline he was able to demonstrate.
Plaintiff alleges that due to the deprivation of his clothing, he had to attend medical visits, the law library, and a pain management appointment in his underwear, and he could not use the exercise yard due to the cold weather or exercise indoors because he had no extra clothes to change into. Plaintiff alleges that there was no heat, so he was perpetually cold and unable to sleep well, and he developed a rash and dandruff. Plaintiff alleges that he was degraded, dirty, helpless, humiliated, depressed, and in despair. Plaintiff also alleges that he suffered from hemorrhoids and rectal bleeding, which required a colonoscopy, and he was so cold at night that his entire body hurt.
Finally, on June 8, 2009, more than seven months later, Defendant Martinez came by Plaintiff's cell and told him he was giving him his clothes back now that it was warming up. Plaintiff was given a white laundry bag even though his unit's laundry bags were black, and he did not get his laundry back after he turned it over for laundering.
The next day, Defendant Martinez authored a chrono stating that Plaintiff lacked an adequate amount of clothing and that the clothing he did have had holes in it. The chrono authorized Plaintiff to possess one jumpsuit, two pairs of boxer shorts, two towels, two t-shirts, and 2 pairs of socks, which was still less than half of the state-mandated clothing allotment. Plaintiff alleges that he continued to freeze and in retaliation against him for continuing to complain about having inadequate clothing and the disappearance of his laundry bag, Defendant Martinez authored and placed a false chrono in his central file stating he made a rope out of a sheet. Plaintiff was charged for the cost without due process and the chrono will continue to be used against him during parole hearings.
Plaintiff further alleges that he has been targeted for assault or worse since early 2008 and his central file documents his incompatibility with any gang. The majority of 4B inmates were therefore unwilling to assist or support Plaintiff, but four inmates did so. On March 21, 2009, Defendant Garcia threatened one of the inmates with harassment for assisting Plaintiff and on July 25, 2009, another inmate was falsely charged with disciplinary violation at the behest of and with ...