The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER VACATING FINDINGS AND RECOMMENDATIONS Doc. 9) ORDER DISMISSING OMPLAINT FOR FAILURE TO STATE A CLAIM AND REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)
I. Findings and Recommendations Vacated
Plaintiff Norris Mills ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff filed this action on January 7, 2008. On September 2, 2008, the Court issued a recommendation that this action be dismissed, without prejudice, for failure to exhaust prior to filing suit. After obtaining an extension of time, Plaintiff filed an objection on October 7, 2008. Because Plaintiff's objection gives rise to a factual dispute, the Court will vacate its recommendation of dismissal for failure to exhaust. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
II. Screening Requirement
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).
"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. P. 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. P. 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. 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)).
Plaintiff is currently housed at the North Fork Correctional Facility in Sayre, Oklahoma. The events giving rise to the claims in this action occurred while Plaintiff was housed at Kern Valley State Prison in Delano, California. Plaintiff alleges that his rights under the United States Constitution were violated by his housing placement in a gym at the prison. Plaintiff alleges that the gym was overcrowded, and that inmates housed there were exposed to asbestos and given polluted drinking water. Plaintiff names Governor of the State of California and the Director of the California Department of Corrections and Rehabilitation ("CDCR"), and is seeking money damages and injunctive relief.
A. Claim for Injunctive Relief
Because Plaintiff is no longer housed at Kern Valley State Prison, his claim for injunctive relief is moot and he may seek only money damages in this action. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
B. Eighth Amendment Violations
Because overcrowding by itself is not a constitutional violation, Plaintiff's bare allegation of overcrowding does not give rise to a viable claim for relief under section 1983. Doty v. County of Lassen, 37 F.3d 540, 544 n.1 (9th Cir. 1994). Further, Plaintiff's conclusory allegation of asbestos exposure and polluted drinking water falls short of supporting a claim.
While elaborate details are not required, Fed. R. Civ. P. 8(a), Plaintiff's allegations must enable the Court to determine that the conditions complained were sufficiently grave to support a claim for violation of the Eighth Amendment, Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). Conditions do not violate the Eighth Amendment unless they pose a substantial risk of harm. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The circumstances, nature, and duration of the deprivations are critical in determining whether the conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim, and it is unclear from the ...