The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS
Plaintiff David Safidi Cauthen, Jr. ("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 October 26, 2012. Plaintiff names Kern Valley State Prison ("KVSP") Correctional Officers Jose Negrete, Matt Northcutt, Higinio Arreola, Enrique Castellanos, M. King, Correctional Sergeant Ignacio Rivera, Correctional Lieutenants M. Waddle and S. D. Hass, Acting Chief Deputy Warden C. Lawless and Nurse Rhennee Mackey 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.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS*fn1
Plaintiff is incarnated at KVSP, where the events at issue occurred.
According to Plaintiff's complaint, on May 12, 2011, Plaintiff, a Rastafarian, was exercising on the D-Facility Middle Recreation Yard. A fight occurred in the distance between Hispanic prisoners and officers were able to stop it. Plaintiff was not involved in the fight and he was not near the location of the fight. All prisoners on the yard were instructed to get down on the ground in a prone position. Under Defendant Rivera's supervision, both male and female correctional officers formed a "scrimmage line" to inspect prisoners that were not involved in the fight.
While still lying on the ground, Defendant Negrete approached Plaintiff with instructions to submit to an unclothed body-cavity inspection. Plaintiff objected to being "sexually exposed" in the presence of female staff, on the grounds of his religious Rastafarian beliefs, and asked Defendant Negrete if he could be searched outside of the presence of female staff.*fn2 Defendant Rivera came over and Plaintiff, along with five other prisoners, repeated their request to be searched outside the presence of female staff. Defendant Rivera instructed his staff to place Plaintiff in restraints for refusing a direct order. Defendant King placed flex handcuffs on Plaintiff, but they were applied in a way that resulted in lacerations and swelling in Plaintiff's wrists and hands. Defendant Rivera ordered Plaintiff to stand and walk backwards, which he did. Under the instruction of Defendant Rivera, Plaintiff was left lying on the grass. Defendant Rivera reported Plaintiff's objections to Defendant Waddle. Defendant Waddle attempted to convince Plaintiff that it was in his best interests to submit to the body-cavity search. Plaintiff repeated his religious objection and request to be searched outside the presence of female staff to Defendant Waddle. Defendant Waddle told Plaintiff that she was under instructions to guarantee that he submitted to a body-cavity search and that she would see that one was conducted under any means necessary. Defendant Waddle instructed Defendant Rivera to "strip Plaintiff out by any means necessary" and returned to the program office.
Plaintiff's restraints were so tight that he asked Defendant King to loosen them. Defendant King told Plaintiff that the restraints were not made for comfort and denied his request. Plaintiff continued to lie on the ground for 30 minutes to an hour, perhaps two hours. He was not allowed to relieve himself and remained in restraints.
Defendant Rivera then approached Plaintiff and commented about Plaintiff "sticking to his guns." Plaintiff repeated his request to Defendant Rivera, but Defendant Rivera instructed Plaintiff to stand so that staff could cut his clothes off. He was forced to stand by Defendants Arreola and Castellanos, though he asked Defendant Rivera to not allow his staff to cut Plaintiff's clothes off on the yard. Defendant Arreola asked Plaintiff why was "acting like a bitch." Plaintiff asked Defendant Rivera to stop the disrespect, but Defendant Rivera just shrugged his shoulders and said, "so what, sue me." He then instructed Defendants Negrete, Northcutt, Arreola and Castellanos to utilize force and "take him."
Plaintiff was then struck in the back of the head, with a closed fist, by Defendant Northcutt. Plaintiff, with his hands still bound, was knocked off balance and took two or three steps forward so that he wouldn't fall on his face. Defendant Negrete then struck Plaintiff in the left knee, causing Plaintiff's knee to buckle, and wrapped his arms around Plaintiff's legs to prevent him from moving. Defendant Arreola grabbed Plaintiff's arms and forced them in an upward direction above Plaintiff's head, causing him to scream out in pain as he felt a sharp snap in his shoulder. As Plaintiff was bent at the waist, Defendant Northcutt applied additional force to Plaintiff's back and struck Plaintiff down to the ground. Defendants Northcutt, Negrete and Arreola all went down on top of Plaintiff. Plaintiff was unable to soften the fall or protect himself from the concrete and he suffered numerous abrasions, as well as swelling, to his face.
While on the ground, Defendant Arreola commanded Plaintiff to stop resisting. Plaintiff was not resisting, but Defendant Northcutt struck Plaintiff in the face and temples multiple times, with his fist. Defendant Arreola choked Plaintiff and smeared his face into the ground, while the weight of the three men on top of Plaintiff cut off his air circulation.
Defendant Rivera then told Defendants Arreola, Northcutt and Negrete that it was enough, and to get Plaintiff stripped out. Defendant Rivera instructed Defendant Negrete to cut off Plaintiff's clothes, which he did. While Plaintiff was naked, with his hands bound and on the ground, Defendant Negrete conducted a body-cavity search. The search wad negative.
Plaintiff could not walk and Defendant Rivera instructed Defendants Negrete, Northcutt and Arreola to lift Plaintiff off the ground and place him on a gurney. Defendant Negrete grabbed Plaintiff by the legs, which were now in leg irons that were too tight, and dragged Plaintiff's naked body, face down, across the grass, gravel and dirt. This was done in view of female staff.
Plaintiff was taken to D Facility Medical and Defendants Negrete and Arreola put Plaintiff, naked, on the bare floor of the medical holding cell. Plaintiff was left there, without cover, screaming that he was hurt and in need of medical attention.
Defendant Mackey arrived at the Medical holding cage and reported that Plaintiff was not injured. Plaintiff asked if he could see a doctor, but Defendant Mackey refused. Plaintiff could not walk on his own and had obvious injuries on his face. Plaintiff believes that Defendant Mackey did not report the injuries to protect the officers involved in the use of excessive force, pursuant to a CDCR "code of silence."
Defendant Mackey left Plaintiff in the holding cell, face down, with a tissue over his buttocks. She refused to turn Plaintiff over to examine the front side of his body. Plaintiff saw and tasted his own blood. He did not receive any medical treatment while housed at KVSP.
When it was time for an on-camera interview related to Plaintiff's complaint of excessive force, Defendant Waddle gave Plaintiff a pair of boxer shorts. Defendant Waddle ordered that the flex cuffs be replaced with metal hand cuffs. She ordered staff to lift him from the floor and said, "Let's go shoot some porn."
After the interview, Plaintiff was taken back to the D Facility Medical holding cell and left there, with his hands and feet bound, until 6:00 p.m. From 10:00 a.m. until 6:00 p.m., he was in restraints. He was not fed the evening meal, offered water, or allowed to relieve himself.
Plaintiff was released from Medical and evaluated by another nurse. He was taken, in a wheel chair, to Administrative Segregation ("Ad-Seg") for alleged battery on a peace officer. Defendant Castellanos alleged that Plaintiff kicked him intentionally in the knee, and Defendants Rivera, Negrete, Northcutt and Arreola said that they witnessed this.
Defendant Waddle then submitted a CDCR 837 incident package that included false allegations and fabricated Rule Violation Reports. He contends that Defendants Rivera, Negrete, Northcutt, Arreola and Castellanos filed false reports of battery based on Plaintiff kicking Defendant Castellanos.
Once he was rehoused in Ad-Seg, Plaintiff submitted an appeal on May 24, 2011, regarding officer misconduct, assault and the use of unnecessary force. Plaintiff contends he experienced a violation of his right to appeal when Defendants Hass and Lawless refused to interview him at the second level. Plaintiff alleges that Defendants Hass and Lawless lied and stated that they interviewed Plaintiff. His appeal was denied through the third level.
On June 10, 2011, Plaintiff was found guilty at a disciplinary hearing for battery on a peace officer. Plaintiff then had criminal charges brought against him as a result of the false reports. Plaintiff was assessed a determinate and indeterminate sentence in the Secured Housing Unit ("SHU") and lost many of his privileges, The practice of his religion was also restricted. Plaintiff suffered significant and atypical hardships during his time in Ad-Seg and the SHU.
On July 12, 2012, Plaintiff was acquitted of the criminal charges. Based on these factual allegations, ...