ORDER: (1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b); and (2) DENYING MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT [ECF Nos. 44, 53]
WILLIAM Q. HAYES, District Judge.
Donnie Scott ("Plaintiff"), a prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") located in San Diego, California, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 17, 2012. Currently, Plaintiff is proceeding with his Second Amended Complaint ("SAC") which was filed on February 27, 2013. [ECF No. 39.]
Defendants Benyard, Walker, Homer, Pittman, Paramo, Martinez and the California Department of Corrections and Rehabilitation ("CDCR") filed a Motion to Dismiss pursuant to FED.R.Crv.P. 12(b). [ECF No. 44.] On March 13, 2013, Defendant Vasquez filed a joinder to the Defendants' Motion. [ECF No. 45.] Plaintiff has filed an Opposition to which Defendants have filed a Reply. [ECF Nos. 49, 50.] The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIvLR 7.1(d)(1), 72.3(e).
On December 1, 2010, Plaintiff was transferred from Centinela State Prison ("CEN") to the Richard J. Donovan Correctional Facility ("RJD"). ( See SAC at 3.) Plaintiff had been classified at CEN as a participant in a disability placement program "restricting plaintiff from upper bunk, upper terrain, and authorizing use of cane." ( Id. ) Plaintiff alleges that he has a "documented history of serious chronic back conditions." ( Id. ) On June 11, 2012, Corrections Officer Orrosco provided a memo to Correctional Officers Hernandez and Estardian informing them to move Plaintiff to an "upper bunk while placing another inmate in plaintiff's lower tier bottom bunk." ( Id. )
Plaintiff informed the Third Watch Sergeant Perez that he was a participant in the disability placement pro gram and Sergeant Perez then verified Plaintiff's disability. ( Id. at 4.) As a result, Correctional Officers Hernandez and Estardian moved Plaintiff to a cell with a bottom bunk on a lower tier. ( Id. ) Two days later, Plaintiff alleges Defendant Vasquez "tossed" his cell and told Plaintiff that he would "be moving again in a couple of days." ( Id. ) On June 15, 2012, Defendant Vasquez "took the plaintiff's lower tier-bottom bunk" but promised him he would move him back the next day. ( Id. ) When Plaintiff followed up with Vasquez the following day, Plaintiff claims Vasquez "got upset" and "locked the plaintiff up in Ad-Seg [administrative segregation]." ( /d. ) Plaintiff was then issued a serious rules violation report for refusing a housing assignment. ( Id. )
Plaintiff alleges he informed Vasquez that Sergeant Perez had already confirmed Plaintiff's disability, to which he claims Vasquez responded by saying "Sergeant Perez did not know nothing!" ( Id. ) Plaintiff alleges that Defendant Pittman is the supervisor of Defendant Vasquez but refused to intervene. ( Id. ) Plaintiff alleges that Defendant Pittman "did nothing about staff taking away plaintiff's cane and handcuffing the plaintiff's hands behind his back." ( Id. ) Plaintiff alleges Defendant Martinez was the officer in charge of housing Ad-Seg and placed him in an upper bunk despite of the fact that Defendant Martinez was aware of Plaintiff's disability. ( Id. at 5.)
On June 18, 2012, Defendant Benyard held a hearing relating to Plaintiff's serious rules violation report and told Plaintiff that he would move Plaintiff to general population. ( Id. ) Plaintiff alleges that Defendant Benyard told Plaintiff that he was "playing games" and he would assign him to an upper bunk and "take away his cane." ( Id. )
On June 21, 2012, the classification committee for Ad-Seg convened and Defendant Paramo, the Warden for RJD, informed Plaintiff that he would need to "update" his chrono in order to be housed in a lower tier, lower bunk cell. ( Id. ) Plaintiff explained that this is unnecessary as he had a form that demonstrated his disabilities. ( Id. ) Plaintiff alleges that Defendant Paramo "threatened to move the plaintiff' to a top bunk on a top tier. ( Id. ) Plaintiff alleges that a physician and classification committee member "interjected that the plaintiff's CDC 1845 chrono was permanent" and Plaintiff's claims were legitimate. ( Id. at 6.) Plaintiff alleges that Defendant Paramo "continued to try and persuade the plaintiff into accepting an upper bunk housing assignment." ( Id. ) Defendant Paramo told Plaintiff that if he continued to refuse his housing assignment, he would receive another rules violation report. ( Id. )
Plaintiff remained in Ad-Seg housed in a top tier following the hearing before the classification committee. ( Id. ) On June 21, 2012, Defendant Homer, whom Plaintiff alleges is the correctional counselor in charge of assisting inmates under the Americans with Disabilities Act ("ADA"), came to Plaintiff's cell in Ad-Seg "instructing the plaintiff to cooperate with staff." ( Id. ) A few days later on June 28, 2012, Defendant Paramo decided to "temporarily place" Plaintiff in a lower tier, lower ...