The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS THIRTY DAY OBJECTION DEADLINE
Plaintiff Tradell M. Dixon, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on August 27, 2012.*fn1 He names Kern Valley State Prison R.N. C. Triesch, Chief Medical Officer Doe, Warden Harrington and CDCR Director Matthew Cate 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.
To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; 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, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
On July 7, 2010, at approximately 10:45 a.m., Plaintiff was admitted to KVSP Facility B
Medical after he was assaulted. Plaintiff was soaked with pepper spray and had deep cuts on his left hand, lower back and both knees, and had two black eyes. He alleges that he was forced to stand naked in a holding cell from 10:45 a.m. to 1:00 p.m., in front of numerous inmates, female medical staff and correctional staff members. The pepper spray was burning his open wounds and genitals. Staff members laughed at his suffering and provided no medical treatment.
At around 1:15 p.m., a full scale riot broke out involving at least 100 inmates. At about 1:30 p.m., Plaintiff was informed that staff needed room in Medical and that they would have to get Plaintiff out. Defendant Triesch then "hastily" cleared Plaintiff to be sent back to the yard, without medical treatment. Plaintiff received a pair of ill-fitting boxer shorts and was cuffed and escorted, bare-footed, over 200 yards on 96 degree pavement.
On July 8, 2010, Plaintiff asked the Building Officer for medical treatment. Medical treatment was denied because Plaintiff was not supposed to be housed in Facility B and because staff were busy because of the riot.
On July 9, 2010, Plaintiff asked a Correctional Officer for a Medical Form and medical treatment. Plaintiff's wounds were open and leaking, and getting infected. Plaintiff never received the form.
On July 10, 2010, Plaintiff was moved to Facility A and told the Correctional Officer that he needed to be taken to Medical for wound treatment. The Correctional Officer told Plaintiff that he would get him a Medical Form to fill out, but he never did. Plaintiff's cell mate had to obtain the form because Plaintiff was on orientation status and ...