The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
) SCREENING ORDER ) ORDER FOR PLAINTIFF TO EITHER: ) (1) FILE A FIRST AMENDED ) COMPLAINT, OR ) (2) NOTIFY THE COURT OF HIS ) WILLINGNESS TO PROCEED ) ONLY ON THE CLAIMS ) FOUND COGNIZABLE BY ) THE COURT ) ) THIRTY DAY DEADLINE TO FILE ) FIRST AMENDED COMPLAINT OR ) NOTIFY COURT
Dennis L. Hamilton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on February 18, 2010. (Doc. 1.)
On April 13, 2010, Plaintiff consented to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance. (Doc. 8.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
Plaintiff's Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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 (2007)). While a plaintiff=s allegations are taken as true, courts Aare 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). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations 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. Id.
III. SUMMARY OF COMPLAINT
Plaintiff is presently incarcerated at the California State Prison, Los Angeles County, in Lancaster, California. The events at issue in the Complaint occurred at Kern Valley State Prison ("KVSP") in Delano, California, when Plaintiff was incarcerated there. Plaintiff names as defendants John Hart, C. Prouty, R. Phillips, J. Ronquillo, D. Castro, Llamas, Scott, Durden, Perez, Gonzalez, Massey, Bogle, Trupe, Ocampo, and an unnamed Lieutenant. Plaintiff's factual allegations follow.
Plaintiff was housed in administrative segregation ("Ad-Seg") for refusing to be housed with a cell mate on three occasions. On February 16, 2006, Plaintiff was videotaped by television reporters from MSNBC Lock Up refusing to accept a cell mate.
On February 21, 2006, Sergeant Harden (not a defendant) approached Plaintiff in AdSeg and told him he would be moving. Plaintiff told him "so long as I don't have a cell mate." A short time later, five officers came to Plaintiff's cell door and told him to pack up his things. Plaintiff told the Lieutenant that he was going to refuse all cell mates. The Lieutenant told Plaintiff to cuff up. Plaintiff was escorted to a cell which already had an inmate. Plaintiff refused to enter, and he was forced into the cell.
A short while later, Plaintiff told Building Officer Castro he refused to have a cell mate. Castro told Plaintiff to talk to the Lieutenant who had put him there. Shortly afterward Plaintiff also told Building Officer Llamas he was not compatible with his cell mate and needed to move. The cell mate also said that they were incompatible. Llamas said he could not override the decision of the Lieutenant. Plaintiff asked for a mattress, and when Llamas returned with the mattress and told Tower Officer Scott to open the door, Plaintiff stepped out of the door before Llamas could give him the mattress. Llamas told Plaintiff to wait in the shower while he called the Sergeant.
About ten minutes later, Officers Hart, Phillips, Prouty, and Ronquillo approached the shower. Officer Hart told Plaintiff to return to his cell, but Plaintiff refused, stating that he had safety concerns about having a cell mate. Hart told Officer Scott to open the shower door, and Hart pulled out his pepper spray and told Plaintiff he was going back in his cell wet or dry. Plaintiff put his hands up to protect his face, and Hart sprayed him. Plaintiff was afraid he was going to be beaten, so he struggled with the officers. Plaintiff was placed in handcuffs, and one of the officers started to twist his wrist, trying to break it. Plaintiff was taken outside, where his wrist was twisted, kicked, and stomped on.
Approximately twenty minutes later, Nurse Bogle came and asked if Plaintiff had any injuries. Plaintiff said no and was taken back to Ad-Seg without being decontaminated. Plaintiff's entire body, especially his eyes and face, burned. He tried to wash off the spray but only spread it further. Plaintiff began choking and gagging, fearing he would have an asthma attack. For thirty seconds at a time, Plaintiff could not breathe. Two ISU Officers came to take Plaintiff's photograph, and he told them he was having trouble breathing and ...