The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS FINDING CERTAIN CLAIMS COGNIZALBE AND DISMISSING REMAINING CLAIMS THIRTY-DAY DEADLINE
Plaintiff Eric Wheeler ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action on May 25, 2012. Plaintiff names California Substance Abuse Treatment Facility ("SATF") Warden Kathleen Alison, Correctional Officers D. Duck, A. Murrieta, R. Lowder and S. Loftis, M. Ross, P.A., B. Mui, M.D., Agnes Wu, Jeffrey Neubarth, M.D., and M. Ancheta, D.D.S., as Defendants.
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 fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
II. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is incarcerated at SATF, where the events at issue occurred.
Plaintiff alleges that on January 19, 2011, while he was returning to his housing unit after breakfast, he was attacked by Inmate Yepiz. He alleges that when he was attacked, there were no officers present. Yepiz struck Plaintiff in the right and left jaw area and ran away. Plaintiff pursued him, past the G-1 office where Defendant Duck and Murrieta were engaged in conversation. An inmate told Plaintiff that he heard Defendant Murrieta tell Defendant Duck to wait to call an alarm until Plaintiff and Yepiz were fighting. He also states that an inmate informed him that Yepiz was a "snitch" for Defendants Murrieta, Loftis and Lowder.
Yepiz ran into the dayroom and Plaintiff unsuccessfully tried to grab the back of his collar from behind. Yepiz then got down onto his stomach. Plaintiff, who has post-traumatic stress disorder, stood frozen with panic. Without provocation, Defendant Duck approached Plaintiff from the left side and struck Plaintiff's left knee with her baton. Defendant Duck struck Plaintiff a second time.
Defendant Murrieta then sprayed pepper-spray into Plaintiff's eyes and face numerous times. Defendant Murrieta also hit other guards, including Defendant Loftis, with the pepper-spray. Defendant Loftis exited immediately and did not return. Defendant Duck struck Plaintiff a third time, hitting Plaintiff's upper left thigh. Defendant Lowder, who was standing to the left of Duck and Plaintiff, sprayed pepper spray on the left side of Plaintiff's head. Plaintiff turned towards Murrieta to avoid Duck's baton, and Murrieta continued to spray pepper spray in Plaintiff's face. Plaintiff dropped his head down and was then hit with a fourth blow from Defendant Duck's baton. The baton struck the left side of Plaintiff's neck and the top of his head. Defendant Duck was then hit with Defendant Murrieta's pepper spray, and she stopped hitting Plaintiff and left the area.
Defendant Murrieta then handcuffed Yepiz and escorted him away. Plaintiff, with no officers present and in extreme pain, lay down on the dayroom floor. He was assisted to his feet by Officer Hughes and limped, uncuffed, to the shower. Plaintiff contends that he did not act aggressively towards Defendants Duck, Lowder, Murrieta or Loftis at any time.
Plaintiff alleges that Defendants Lowder, Duck, Murrieta and Loftis entered into a conspiracy to cover up the use of excessive force by authoring separate incident reports on Plaintiff. The false reports claimed that Plaintiff assaulted inmate Yepiz and the other officers. As a result of the false reports, Plaintiff spent time in Administrative Segregation ("Ad-Seg") and served a six month term in the Secured Housing Unit.
On January 19, 2011, Defendant Ross examined Plaintiff. Plaintiff explained what happened and complained of severe pain in his jaw, left knee, left thigh and neck. Ross consulted a dentist, who ordered x-rays. The x-rays revealed jaw fractures and required transport to the hospital. Plaintiff alleges that Defendant Ross told him that he would not receive treatment for his neck, left knee or left thigh because Plaintiff was assaulted by staff. Defendant Ross did not refer Plaintiff for treatment of these injuries.
On January 19, 2011, Plaintiff was transported to Mercy Hospital in Bakersfield, California.*fn1 He was under the care of Defendant Mui, a doctor at Mercy Hospital, for his left jaw injury. In the emergency room, Plaintiff told staff that he sustained injuries to his left knee, left thigh and neck, and that he was in severe pain. A doctor in the emergency room noted these complaints in his reports. Examination revealed mild swelling of the left knee. A CT scan of Plaintiff's face showed a mandibular fracture. An x-ray of Plaintiff's left knee showed a prominent effusion and a non-displaced fracture of the distal femur.
Dr. Mui admitted Plaintiff for his mandibular fracture. Plaintiff was placed on the fifth floor prison ward, where his left leg was handcuffed to the foot of the bed. Plaintiff told prison guards and nurses that his left leg was in severe pain, but it remained cuffed to the bed for 44 hours.
On January 20, 2011, Dr. Suesberry told Plaintiff that he would need to undergo a closed reduction of the jaw, with fixation. Dr. Mui told Plaintiff that a CT of his head showed a left condylar neck fracture. Dr. Mui did not mention knee x-rays and Plaintiff told him again that his left knee and thigh were in severe pain. Dr. Mui said he was not treating the left knee and told Plaintiff that he was admitted only for the mandibular fracture. Plaintiff told him that an emergency room doctor had documented his knee pain and that x-rays were taken, but Dr. Mui would not listen. Plaintiff alleges that A. Wu, Medical Director of Mercy Hospital, was responsible for medical staff and treatment of patients.
On January 21, 2011, Plaintiff was discharged from Mercy Hospital and admitted to the prison infirmary. He had undergone surgery and his jaw would be wired shut for 5 to 6 weeks. Plaintiff was placed under the care of Defendant Neubarth. Plaintiff informed him that he could not put weight on his left leg and Neubarth was aware of the x-ray done at Mercy Hospital. Despite this, Defendant Neubarth kept ordering Plaintiff to walk and exercise his left leg. He did not refer Plaintiff for an MRI, or order any treatment.
On February 22, 2011, Plaintiff was transported to see Dr. Suesberry. He cut the bands holding Plaintiff's jaw closed and told Plaintiff that he would remove the wires, bars and arches on March 8, 2011. Dr. Neubarth was responsible for requesting the follow-up on March 8, 2011, and knew of Dr. Suesberry's February 22, 2011, orders. Dr. Neubarth failed to request further treatment and Plaintiff went 55 ...