United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT LACEY'S MOTION TO DISMISS (Document 18)
DENNIS L. BECK, Magistrate Judge.
Plaintiff Wayne Chick ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 29, 2011.
On April 22, 2013, the Court screened Plaintiff's First Amended Complaint ("FAC") and found the following cognizable claims: (1) an Eighth Amendment conditions of confinement claim against Defendants Lacey and Wattle; (2) an Eighth Amendment failure to protect claim against Defendant Lacey; and (3) an intentional infliction of emotional distress claim against Defendants Lacey and Wattle. The Court dismissed all other claims and Defendants.
On October 14, 2013, Defendant Lacey filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and for failure to exhaust. Plaintiff filed an opposition on January 24, 2014, and Defendant Lacey filed a reply on January 28, 2014. The motion is deemed submitted pursuant to Local Rule 230(1).
Defendant Wattle was served with the FAC on February 5, 2014, and filed a motion to dismiss the claims against him pursuant to Rule 12(b)(6) on February 26, 2014. Plaintiff received an extension of time to file an opposition, though it appears that the arguments are the same, or substantially similar, to those made in the instant motion.
I. ALLEGATIONS IN FAC
On September 6, 2010, while Plaintiff was at dinner, Defendant Lacey conducted a cell search and left a "complete mess, " with his personal belongings thrown to the floor and mixed with those of his cellmate. FAC 4. Plaintiff alleges that it seemed liked the search was conducted with hatred and hostility.
When Plaintiff returned from dinner, Defendant Lacey told him told him to gather all of his property and take it down to the podium. Plaintiff did so, and Defendant Lacey told him that he knew why Plaintiff was in prison and that he was going to get rid of all of his trash for him.
On September 7, 2010, Plaintiff heard Defendant Lacey tell other inmates that he was "going to trash [Plaintiff's] cell, and take his stuff." FAC 5. Plaintiff alleges that twelve other inmates, who also heard Defendant Lacey's threat, warned Plaintiff during the course of the day. That day, Defendant Lacey went to his cell and made Plaintiff take all of his property to the podium. Defendant Lacey again disposed of pieces of Plaintiff's property, calling it trash and/or contraband.
On September 9, 2010, Plaintiff spoke to Sgt. Mutty about the harassment and threats from correctional officers, and Mutty told him that he would speak to Defendant Lacey about the issue. Later that day, Defendants Lacey and Wattle made Plaintiff and his cell mate take their property to the podium for a search. Defendants made Plaintiff and his cell mate clean up the cell, from top to bottom. They again disposed of personal property and told Plaintiff, in a loud and mean manner, that he was "a mentally ill dirty individual" and that he'd be going through the same search procedure tomorrow. That night, Plaintiff was "physically and psychologically humiliated." FAC 5. He was trembling and could not "sleep nor focus as the previous three nights." FAC 5. He states that he knew then that he had to seek help from someone who was not a correctional officer.
On September 10, 2010, Defendant Lacey sent a note to psychologist Katherine Robertson, stating that Plaintiff was a dirty, hoarding and unclean inmate. Plaintiff spoke to Dr. Robertson and she told him to write it all down.
Later that day, Defendant Lacey had Plaintiff take his property to the middle of the dayroom, where all inmates could see it. He searched Plaintiff's property and disposed of whatever he saw fit, despite Plaintiff's pleading and documented receipts. Defendant Lacey was also allowing other inmates who work in the building to take what they wanted from Plaintiff's property. That evening, Plaintiff was not allowed to shower and was sent back to his cell without a toothbrush or toothpaste. He was not able to sleep due to fear.
During these searches, Defendant Lacey was slowing getting rid of Plaintiff's legal documents. This caused Plaintiff to have a psychological breakdown and miss his court deadlines.
On September 11, 2010, Defendants Lacey and Wattle asked Plaintiff to remove his property from the room where it was placed the day before and take it to the podium. While Plaintiff was doing this, Defendants Lacey and Wattle were making fun of Plaintiff and yelling derogatory names in the presence of other inmates. During this search, Defendants disposed of Plaintiff's top and bottom dentures and religious artifacts. Plaintiff states that the confiscation of these items was a "major debilitation" of his emotional state of mind, as described by the attached notes of Dr. Robertson.
On September 13, 2010, Defendant Lacey yelled at Plaintiff while he was in his cell and told him to bring his property down. The search was conducted in the same manner as previous searches and Plaintiff was again not allowed to shower.
On September 16, 2010, Defendant Lacey called Plaintiff in from the yard and told him to pack his property up and take it to the podium. Later in the day, Plaintiff went to dinner while his property remained at the podium. After Plaintiff went back to his cell and waited, Defendant Lacey told Plaintiff that he had been waiting for him for 30 minutes so that he could search his property. Plaintiff alleges that the correctional officer running the cell control tower intentionally prohibited Plaintiff from coming out of his cell. That evening, Plaintiff was not allowed to pick up his psychiatric medication.
On September 20, 2010, Defendant Lacey called Plaintiff from his cell to the podium office for the sole purpose of demoralizing, ridiculing and belittling Plaintiff in the presence of other inmates.
On September 23, 2010, Defendant Lacey did the same thing, but this time, he was yelling loudly to other inmates that they should feel free to physically attack Plaintiff.
On October 14, 2010, Plaintiff told his psychologist that he was physically attacked by his cell-mate the prior week due to Defendant Lacey's encouragement. Plaintiff cites to a mental health progress note dated October 14, 2010, that states that Plaintiff was assaulted the prior week by his former cellie, and that he continues to ...