The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS ECF No. 10
Plaintiff Andrew W. Martin ("Plaintiff") was a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. On August 31, 2011, Plaintiff filed his Complaint. ECF No. 1. On July 16, 2012, the Court screened Plaintiff's complaint and found that it stated cognizable claims for relief against Defendants Flores, Borges, Miles, and Murphy for violation of the Eighth Amendment, but failed to state any other claims. Plaintiff was provided the opportunity to amend his complaint to cure the deficiencies identified. On September 6, 2012, Plaintiff filed his First Amended Complaint. ECF No. 10.
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. Id. § 1915A(b)(1),(2). 2
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 5
A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of First Amended Complaint
Plaintiff was incarcerated at Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Warden F. Chavez; correctional sergeant M. Murphy; correctional officers A. Flores, W. Gregg, and E. Borges; medical doctor S. Smith; osteopathic physician and surgeon J. Krpan; registered nurse M. Cope; and Does 1 through 25.
Plaintiff alleges the following. On January 4, 2011, Plaintiff was attacked by another inmate and sustained serious injuries. Plaintiff is a male to female transgender inmate.*fn1 Defendant Chavez implemented "Rolling Blackouts" at SCC during this time. Rolling Blackouts place a facility on lockdown/modified program. During Rolling Blackouts, responder staff, correctional officers who are trained to respond to emergency situations, are redirected to the other facilities. Responder staff are posted at strategic positions during inmate movement and act as a deterrent to prevent assaults. On January 4, 2011, responder staff were not present at Plaintiff's facility.
At 6:40 p.m., during evening chow, Plaintiff was attacked by inmate Rodriguez. When Plaintiff hit the ground, Plaintiff was semiconscious, unconscious, or in a dazed, confused state. Inmate Rodriguez attacked Plaintiff repeatedly in the facial area, with strikes landing on Plaintiff's eyes and right ear area. Defendant Murphy noticed two inmates on the ground and announced the 2 alarm over the institutional radio system.
Defendant Murphy witnessed Defendant A. Flores utilizing his M. K. 9 pepper spray into the facial area of Plaintiff. Defendant Flores wrote and signed a false report, stating that both inmates 5 were striking each other in the upper torso and facial areas. Plaintiff was at first misclassified for 6 administrative segregation ("ad-seg") status. 7
Plaintiff had sustained injury to the right ear and was unable to hear from that ear properly.
Defendant Gregg was assigned to the facility medical unit that night. Per Defendant Murphy's 9 orders, Defendant Gregg was to decontaminate Plaintiff from the effects of the pepper spray. Defendant Gregg ordered Plaintiff to remove his clothing. Plaintiff had difficulty hearing Defendant Gregg's verbal orders because of the injury to Plaintiff's right ear area. Defendant Gregg ordered Plaintiff to wash the blood from his wounds prior to being seen by licensed vocational nurse Maldando. However, Plaintiff was unaware that he was supposed to decontaminate in the bathroom sink. Plaintiff's injuries were active bleeding, bruised/discolored area, cut/laceration/slash, and swollen areas. Plaintiff had observed prior inmates decontaminated by garden hose to wash an inmate's hair, arms, and legs. Plaintiff was not told to attempt to wash the pepper spray from his hair. Plaintiff suffered from the effects of the pepper spray through the night, and had transferred the pepper spray to his eyes and genitalia. Plaintiff was never properly decontaminated by Defendant Gregg.
Nurse Maldando referred Plaintiff to the SCC Main Medical Facility for further treatment. Defendant Borges took command of the transport, and immediately disliked Plaintiff. Defendant Borges manhandled Plaintiff "like a rag-doll." Defendant Borges used derogatory remarks concerning Plaintiff's sexual orientation while simultaneously yanking and pulling Plaintiff in an unprofessional manner. Plaintiff repeatedly told Defendant Borges that he was having trouble hearing Defendant Borges's verbal commands. Plaintiff was at all times in handcuffs and other mechanical restraints as Defendant Borges dragged and yanked him, and verbally abused him.
After receiving dental x-rays, Defendant Borges escorted Plaintiff to the ad-seg area of the prison infirmary. Plaintiff experienced severe burning of the eyes and genitalia because Plaintiff had transferred pepper spray by his hands and had not been properly decontaminated. On January 5, 2 2011, Plaintiff was finally allowed to wash off the effects of the pepper spray in the infirmary 3 shower with soap and water, and provided clean clothing.
On January 7, 2011, Plaintiff was seen by the oral surgeon, who reviewed the x-rays and concluded that Plaintiff had a cracked cheek bone. Plaintiff was also seen by Defendant Smith, who 6 treated Plaintiff with eye drops. Plaintiff had complained of lower back pain the tailbone area, loss 7 of balance, and blurred, diminished vision in the right eye. Plaintiff was released from the infirmary 8 and returned to ad-seg. 9
On January 10, 2011, the captain reviewed the lockup order for Plaintiff and released Plaintiff back to general population. Plaintiff remained in ad-seg until January 16, 2011.
On January 12, 2011, Plaintiff was seen by Defendant Krpan in the ad-seg medical unit. Plaintiff again complained of lower back pain the tailbone area, loss of balance, and blurred, diminished vision in the right eye. Defendant Krpan wrote a false report that the dizziness and visual difficulties had resolved.
On January 7, 2011, when Plaintiff entered ad-seg, all of Plaintiff's Keep On Person ("KOP") medication were taken, pursuant to a policy implemented by Defendant Chavez. On January 16, 2011, upon release from ad-seg, Plaintiff contacted Defendant nurse M. Cope regarding the confiscated KOP medication. Defendant Cope assured that Plaintiff's KOP medication would be returned. On January 20, 2011, after not receiving his medication, Plaintiff submitted a sick call slip, and was again seen by Defendant Cope. Plaintiff informed Defendant Cope that he had still not received the KOP medication. Plaintiff had medication for heartburn, migraine headaches, psoriasis, pain, eye drops, and a thyroid condition. Without the thyroid medication, Plaintiff suffers from shakes or quivers, lack of sleep, odd, funny feelings, uncontrolled hunger pangs, and chipping of fingernails. Plaintiff informed Defendant Cope of his injuries. Defendant Cope assured Plaintiff that she would order the medication right away.
On January 25, 2011, Plaintiff had not received his medication. Plaintiff was examined by nurse Heather, who scheduled Plaintiff to see his primary care physician the next day. Nurse Heather also ordered Plaintiff's thyroid medication, which he received on January 27, 2011.
Doctor Thomatos, Plaintiff's primary care physician, examined Plaintiff, prescribed a medical donut, and lower bunk, lower tier chrono, and ordered a x-ray for Plaintiff's coccyx (tailbone). Doctor Thomatos also referred Plaintiff to see an outside eye clinic. The eye doctor 4 could not determine whether Plaintiff had suffered permanent injury to his right eye. The eye doctor 5 prescribed corrective lenses.
In early February of 2011, Plaintiff submitted another sick call slip, complaining that while housed in the prison infirmary, or the ad-seg unit, he had developed a pain rash and small sores all 8 over his arms and legs. Defendant Cope denied Plaintiff access to see the physician, stating that Plaintiff always had something wrong with his skin. Defendant Cope did not look at Plaintiff's small sores.
On March 1, 2011, the sores and rash became worse, and Plaintiff submitted another sick call slip. Plaintiff was again seen by Defendant Cope, who looked at the rash and sores and exclaimed that Plaintiff had staphylococcus. Plaintiff was finally seen by Dr. Thomatos on ...