United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM
(Doc. 21) THIRTY-DAY OBJECTION DEADLINE
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff DeWayne Thompson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 6, 2013. Plaintiff filed an amended complaint as a matter of right on July 24, 2013, Fed.R.Civ.P. 15(a), and the Court dismissed the amended complaint on legibility grounds on November 12, 2013, Fed.R.Civ.P. 8(a); Local Rule 130(b). On November 25, 2013, Plaintiff filed a legible second amended complaint in compliance with the order, and on January 9, 2014, the Court ordered Plaintiff to either file a third amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. Plaintiff filed a third amended complaint on January 24, 2014. On June 9, 2014, the Court screened Plaintiff's third amended complaint and ordered him to either file a third amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. Plaintiff filed a fourth amended complaint on June 18, 2014.
II. Screening Requirement and Standard
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences, " Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of 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). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
A. Summary of Plaintiff's Allegations
Plaintiff, who is currently incarcerated at California State Prison-Sacramento, brings this action against Correctional Officers T. Adams, B. Harmon, N. Schultz, Eckman, and Brodie; Correctional Sergeant E. Felix; Correctional Lieutenant Cruz; and Psychiatric Technician S. Pendergrass for violating his rights under the Eighth Amendment to the United States Constitution. Plaintiff alleges that on August 9, 2012, at approximately 7:20 a.m., Defendants Harmon and Schultz delivered him an incomplete lunch and ignored his subsequent complaint. Plaintiff then kicked his cell door to get attention. Defendants Adams, Eckman, and Felix approached the cell, and Defendant Adams opened the slot in Plaintiff's cell door and drenched him with pepper spray. Defendant Felix told Plaintiff he could decontaminate in his cell sink, despite Plaintiff's complaints regarding chest pain and trouble breathing. Plaintiff alleges that Defendants failed to decontaminate him or instruct him on decontaminating himself, and they left him in his cell until he complained of chest pain and difficulty breathing, at which time he was given medical attention.
At approximately 7:35 a.m., Defendant Pendergrass came to Plaintiff's cell and he handed her a medical care request form which identified his chest pain and breathing trouble. Defendant Pendergrass had Plaintiff removed from his cell and she checked his vital signs. Plaintiff was cleared by medical at 7:40 a.m. Although Plaintiff complained about having trouble breathing and pleaded with Defendants to be decontaminated in the shower, per usual procedure, Defendants Felix and Harmon escorted him back to his chemical-filled cell. Defendant Pendergrass checked on Plaintiff twice at fifteen-minute intervals and "assist[ed] on combating chemical[s]." (4th Amend. Comp., court record p. 9.) Plaintiff showed Defendant Pendergrass the low water pressure and the problem with obtaining cold water unless the faucet was held down. Defendant Pendergrass said she would let custody staff know, but she failed to have custody staff remove him for proper decontamination and she failed to show him how to combat the chemicals. Plaintiff also informed Defendant Cruz about his staff's refusal to decontaminate Plaintiff, but he ignored Plaintiff's pleas.
By 8:00 p.m., the temperature was reaching 105 degrees and it was humid in Plaintiff's cell, which exacerbated the painful chemical effects, but Plaintiff still went without any assistance with decontamination from Defendant Felix or Defendant Pendergrass. Finally, Plaintiff received his regularly scheduled shower at 8:00 p.m. and he was able to decontaminate.
Plaintiff also alleges that Defendant Brodie, who found Plaintiff guilty of a rules violation for refusing a direct order resulting in use of force, violated his constitutional rights under the Eighth Amendment when Brodie revoked Plaintiff's yard access for ninety days. Plaintiff alleges he has a right to outside recreation and prison regulations ...