The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT CERTAIN DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS (Docs. 18, 19)
Plaintiff Shaulton Mitchell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on September 12, 2007. (Doc. 1.) Plaintiff filed his first amended complaint on March 17, 2008. (Doc. 14.) The Court dismissed Plaintiff's first amended complaint with leave to amend on June 17, 2008. (Doc. 16.) Plaintiff filed a second amended complaint on July 21, 2008. (Doc. 17.)
On December 16, 2008, the court issued an order finding that plaintiff's allegations give rise to cognizable claims for relief under section 1983 against defendants Hernandez, Aguirre, Gutierrez, Compelbel, Masiel, Bustos, Sloss, Aguayo, and Martinez. However, the court found that plaintiff's allegations do not give rise to any claims for relief against defendants Jones, Cano, Ruiz, and Thompson. The court ordered plaintiff to either file a third amended complaint or notify the court that he wishes to proceed only on his cognizable claims. On December 29, 2008, plaintiff notified the court that he does not wish to amend and wishes to proceed only his cognizable claims. Based on plaintiff's notice, the instant Findings and Recommendations now issues.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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).
B. Summary of Plaintiff's Second Amended Complaint
Plaintiff is currently a state prisoner at Salinas Valley State Prison. Plaintiff was formerly imprisoned at Corcoran State Prison ("CSP") in Corcoran, California, where the acts he complains of occurred. Plaintiff names as defendants: Correctional Officers ("C/O") J. Hernandez, Masiel, Aguirre, Sloss, Compelbel, Gutierrez, Aguayo, and Bustos; Sergeants Martinez and Thompson; Lieutenant Ruiz; and Appeals Coordinators L. Cano and J. Jones.
Plaintiff alleges the following: On April 5, 2007, following an argument concerning some food, Plaintiff was moved by defendants Hernandez and Aguirre to a cell that had a non-functional toilet. Plaintiff filed an inmate appeal to be moved, but the complaint was not lodged. Plaintiff demanded that the defendants be fired and that he be compensated. Plaintiff stayed in that cell for several days, and complains of serious stomach pains, headaches, and dizziness. Plaintiff had a difficult time eating because of the smell. Plaintiff requested to be seen for medical treatment because of the odor but was denied. The toilet was finally fixed days later. (Doc. 17, pp. 6-7.)
On April 25, 2007, defendants Hernandez and Gutierrez refused to feed Plaintiff breakfast and lunch. Hernandez and Gutierrez falsely accused Plaintiff of covering up his light in order to justify not feeding him those meals. Plaintiff filed an appeal against them. On April 29, 2007, Plaintiff was again deprived of breakfast and lunch. Gutierrez and Hernandez again falsely state that it was for refusing to uncover his light and refusing a meal. From May 1, 2007 through May 3, 2007, defendants Hernandez, Aguirre, Gutierrez, and Compelbel refused to feed Plaintiff solely because he had submitted 602 complaints against them. (Id., pp. 7-8.)
On May 10, 2007, Gutierrez and Bustos refused to feed Plaintiff breakfast and lunch. (Id., p. 8.) On May 11, 2007, Hernandez and Masiel refused to feed Plaintiff breakfast and lunch. (Id.) On May 17, 2007, Sloss and Aguayo refused to feed Plaintiff breakfast and lunch. On July 16, 2007, Plaintiff was again denied breakfast and lunch by Hernandez. Because Plaintiff wanted to eat, Plaintiff eventually stopped filing 602 complaint forms. (Id., pp. 9-10.)
Defendant Hernandez made repeated statements and threats, spat in Plaintiff's food, and on one occasion shoved a breakfast tray into Plaintiff, resulting in a bump to Plaintiff's hand and feet. Plaintiff asked defendant Martinez to move him to a different section, but Martinez refused, and stated that Hernandez might stop if Plaintiff stopped writing 602 appeals. Martinez also stated that he hoped Plaintiff would be hit again. On August 13, 2007, Plaintiff made an angry statement to Hernandez. Masiel then removed Plaintiff's mattress from his cell. (Id., pp. 11-12.)
Sergeants Martinez and Thompson received and processed Plaintiff's 602 appeals, but intentionally interfered by not forwarding the complaint in a timely manner. Defendants J. Jones and L. Cano rejected Plaintiff's complaints for no reason at all. (Id., pp. 12-13.) Plaintiff alleges claims based on poor living conditions, retaliation, deprivation of food, harassment, excessive force, failure to protect, denial of access to court, violation of due process and equal protection.
Plaintiff seeks injunctive relief and monetary damages.
1. Federal Rule of Civil Procedure 8(a)
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
The Civil Rights Act under which this action was ...