United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST (Document 17)
DENNIS L. BECK, Magistrate Judge.
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Raymond McGinnis, a state prisoner proceeding pro se and in forma pauperis. Plaintiff filed this action on December 17, 2012. The action is proceeding against Defendant Atkinson for violation of the Eighth Amendment.
On December 13, 2013, Defendant filed an unenumerated Rule 12(b) Motion to Dismiss based on exhaustion. Plaintiff filed an opposition on February 6, 2014, and Defendant filed a reply on February 13, 2014. The motion is deemed submitted pursuant to Local Rule 230(l).
A. PROCEDURAL HISTORY AND PRIOR ACTION
Plaintiff filed this action on December 17, 2012. On June 24, 2013, the Court issued an order finding a cognizable Eighth Amendment claim against Defendant B. Atkinson. Plaintiff's claim is based the alleged unnecessary use of pepper spray on June 14, 2011.
Plaintiff filed a prior action against Defendant Atkinson concerning the same June 14, 2011, incident, on August 12, 2011. The Court found a cognizable Eighth Amendment claim and ordered service.
On March 5, 2012, Defendant filed a Motion to Dismiss based on exhaustion. The Court issued Findings and Recommendations that the motion be granted on June 25, 2012. The Court adopted the Findings and Recommendations on July 19, 2012, and the action was dismissed without prejudice.
Plaintiff filed this action five months later.
B. PLAINTIFF'S ALLEGATIONS
Plaintiff alleges that on June 14, 2011, while housed at Kern Valley State Prison, his cellmate, Inmate Harrison, had an issue with his food tray. Inmate Harrison brought the issue to the attention of Defendant Atkinson and C.O. Sedlezky, and he requested to see the head kitchen worker. At tray pick-up, Inmate Harrison gave Plaintiff's food tray to Defendant Atkinson and again requested to see a kitchen worker or sergeant.
During this time, Plaintiff was sitting on the top bunk writing a letter. Defendant Atkinson and C.O. Sedlezky left the cell to complete tray pick-up in the housing unit, and then returned to Plaintiff's cell for the other tray. Inmate Harrison told them that he was not giving them the tray. The officers pulled out pepper-spray and ordered the tower officer to open the cell door. Inmate Harrison backed away from the door, and Defendant Atkinson retrieved the food tray from the sink and left the cell.
About five minutes later, Inmate Harrison covered up the window with paper. Defendant Atkinson and C.O. Sedlezky returned to the cell and talked to Inmate Harrison through the uncovered side window. Both officers told Inmate Harrison to take down the window covering. Defendant Atkinson then told the tower officer to open the cell door. The door opened about a foot and the tray slot was open. C.O. Sedlezky then pepper-sprayed Inmate Harrison, who moved towards the back of the cell.
At this time, Plaintiff was still sitting on the top bunk. He looked towards the tray slot, while he remained seated on his bed. Defendant Atkinson then pointed his pepper spray in Plaintiff's direction and pepper-sprayed Plaintiff for no reason. The pepper spray hit Plaintiff directly in the face. Plaintiff yelled, "What are you spraying me for?" C.O. Sedlezky then ordered Plaintiff to get off his bed. Plaintiff somehow made it to ...