ORDER (1) DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND FOR SEVERANCE OF PARTIES AND CLAIMS PURSUANT TO FED.R.CIV.P. 8, 18, 20, 21; (2) SUA SPONTE DISMISSING CLAIMS AND DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2) & § 1915A; AND (3) ISSUING OSC FOR FAILING TO PROSECUTE PURSUANT TO FED.R.CIV.P.41(b) (ECF No. 36)
WILLIAM Q. HAYES, District Judge.
Ramon Murillo ("Plaintiff'), currently incarcerated at Mule Creek State Prison located in lone, California, is proceeding in pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983.
I. Procedural History
On October 31, 2012, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. (ECF No.1.) On January 29, 2013, this Court granted Plaintiff's Motion to Proceed in Forma pauperis ("IFP") and directed the United States Marshal's Service to effect service of the Complaint on the named Defendants. (ECF No. 7.) On May 30, 2013, Defendants filed a "Motion to Dismiss and for Severance of Parties and Claims" pursuant to FED.R.CIV.P. 8, 18, 20, 21, 41(b). (ECF No. 36.) Plaintiff filed an Opposition, to which Defendants filed a Reply. (ECF Nos. 39, 41.) Subsequently, Plaintiff sought permission to file a Sur-Reply which was granted by the Court and Plaintiff filed his Sur-Reply on August 30, 2013. (ECF No. 45.)
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 William V. Gallo is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
II. Factual Allegations
In 2011, Plaintiff was housed at the Richard J. Donovan Correctional Facility ("RJD"). ( See CompI. at 9.) On December 31, 2011, Plaintiff claims that he was "slam[ed] on the ground" by Defendant Rucker, with assistance by Defendant Owens and "dragged" across the dayroom floor. ( Id. ) Plaintiff contends that after he was "forced" into a cell, Defendant Rucker "started beating up" Plaintiff by "punching" and "kicking" Plaintiff in the face while Defendant Owens watched. ( Id. ) Plaintiff alleges that Defendant Owens encouraged Defendant Rucker's behavior and began to participate by "kicking the Plaintiff several times." ( ld. at 12.) Plaintiff alleges Defendants Rucker and Owens "threatened Plaintiff if he reported the beating he would regret it." ( ld. ) Defendants Rucker and Owens "closed the cell door" and allegedly failed to provide Plaintiff with medical treatment. ( ld. )
Plaintiff claims that he "cut his arm" approximately twenty minutes later so he could call for medical attention and report the incident. ( ld. ) Plaintiff was interviewed by Captain Stout and Lieutenant Salas regarding the incident at the RJD "crisis bed." ( ld. ) On January 9, 2012, while still housed in the "crisis bed, " Plaintiff claims that a "nurse and Defendant Cedano" verbally assaulted him. ( ld. at 13.) Plaintiff claims Defendant Cedano entered his cell door and pushed Plaintiff "violently" that caused Plaintiff to fall to the floor and "hit his head on the wall made of concrete." ( ld. ) Plaintiff contends Defendant Cedano "jumped on Plaintiff, " choked him and ultimately "covered up" the use of force by claiming that he pinned Plaintiff down to give him a hormone shot. ( ld. )
Three days later, Plaintiff reported the incident to his psychologist and psychiatrist, who in turn reported the incident to Captain Stout. ( ld. ) Captain Stout ordered that a video interview of Plaintiff be conducted by Lieutenant Franco. ( ld. ) On January 10, 2012, Plaintiff was released from the crisis bed and returned to "EOP Building." ( ld. ) Plaintiff alleges that the actions by Defendant Cedano were in retaliation for Plaintiff reporting the incident with Defendant Rucker. ( ld. ).
Plaintiff alleges that his attempts to file complaints and grievances relating to these actions were thwarted by the actions of Defendants Paramo, Hernandez, Cobb and Foston. ( ld. at 14.) As a result, Plaintiff alleges he was subjected to "more retaliation, harassment, sexual harassment and beatings." ( ld. ) Plaintiff further claims that despite the knowledge of these Defendants regarding the allegations that Plaintiff was "sexually assaulted by CDCR staff, beaten by staff, receiving retaliation, that his property was being taken and he was not receiving his medical appliance, " they choose "not to act." ( ld. )
Plaintiff claims Defendant Taylor and Solis retaliated against him by denying his medical appliances and property while he was in Administrative Segregation ("Ad-Seg") for more than five months. ( ld. at 15.) In addition, Plaintiff alleges Defendants Strayhorn and Romero called Plaintiff a "faggot" in from of other inmates, searched his cell and took his property in retaliation for Plaintiff filing reports against them with Captain Franco, Sergeant Strickland, Sergeant Ashberry, Sergeant E. Garcia and Captain Reed. ( ld. ) Plaintiff claims that he continued to have his cell searched on a daily basis in retaliation for reporting Defendants. ( ld. at 16.)
On April 17, 2012, Plaintiff claims that Defendants Elias, Ives and Davis called Plaintiff, a transgender inmate, a "man with a dick and tits" and a "queer." ( ld. ) Plaintiff claims that Defendants Elias and Davis then went to search Plaintiff's cell and confiscate his property, including his legal work. ( Id. at 16-17.) Plaintiff claims Defendant Davis read a personal letter belonging to Plaintiff to staff and inmates, then proceeded to call him a "faggot" while Defendant Ives confiscated Plaintiff's deodorant and told him "now [Plaintiff] could smell like a flaming queer." ( Id. at 17.)
When Plaintiff requested the return of his property, he was told by Defendant Elias to "prove it" and "you could 602 bitch." ( Id. ) Plaintiff alleges Defendant Davis then told Plaintiff "I'm going to get you killed Murillo." ( Id. ) Plaintiff filed a staff complaint against Defendant Elias on April 5, 2012 and was assisting other inmates in filing grievances against Defendants Ives and Elias, which he claims resulted in further retaliation by Defendants Elias, Davis and Ives. ( Id. ) Plaintiff alleges that Defendants Elias, Davis and Ives threatened Plaintiff that if he "continued to file staff complaints and help others, he would be sorry." ( Id. )
On July 26 and 27, 2011, Plaintiff alleges that Defendant Pickett and Davis violated his Eighth Amendment rights when they "forced Plaintiff to take an x-ray and exposing him to radiation without protection." ( Id. at 18.) Plaintiff claims they subjected him to "unwanted, unauthorized and offensive touching" when he was "pinned down" on the x-ray table. ( Id. )
Plaintiff claims Defendant Hamilton also called Plaintiff a "faggot" in front of other inmates and threatened to "stick the baton into Plaintiff." ( Id. at 19.) He further alleges that Defendant Hamilton informed other inmates of Plaintiff's criminal history in an attempt to have other inmates "beat up" Plaintiff. ( Id. ) Defendant Hamilton is alleged to have told Plaintiff to "stay away" and "stop flirting" with inmate Rodriguez because this inmate "belonged" to Defendant Hamilton. ( Id. ) Plaintiff reported these threats to Defendant Goff, Sergeant Ashberry, Sergeant Strickland and Defendant Reed. ( Id. at 20.) Plaintiff claims Defendant Goff and Reed "failed to protect Plaintiff from the reported sexual harassment and from sexual misconduct from staff." ( Id. ) ...