The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 15.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Rodney Banks ("Plaintiff") is a state prisoner proceeding pro se. The Court granted Plaintiff's motion to proceed in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on August 21, 2006. (Doc. 1.) Plaintiff's complaint was screened and dismissed with leave to amend. (Doc. 12.) On November 10, 2008, Plaintiff filed a First Amended Complaint which is presently before the Court. (Doc. 15.)
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).
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
C. Plaintiff's First Amended Complaint
Plaintiff is currently a state prisoner at North Kern State Prison. Plaintiff was formerly imprisoned at Corcoran State Prison, where the acts he complains of occurred. Plaintiff names Chief Deputy Warden D.D. Sheppard-Brooks, Sergeant D.B. Scaife, and Doctor Lu as the only defendants in this action. Plaintiff seeks nominal and punitive damages, as well as preliminary and permanent injunctive relief.
Plaintiff alleges that on December 22, 2005, he "started" an inmate 602 form "regarding a vegetarian meal." (Doc. 15, pg. 3.) Around July 11, 2006, he wrote to Chief Deputy Warden Sheppard-Brooks that he was not a religious person, but requested a vegetarian meal because he had given up on eating meat. Id. Plaintiff told Sergeant Scaife that he was going on a hunger strike up to two weeks. Id. Plaintiff's blood sugar was at 23 and he was to see Dr. Lu on July 17, 2006 or July 20, 2006, but Dr. Lu never saw him. Id.
The Court finds that Plaintiff fails to state a cognizable claim against any defendant(s). Plaintiff was previously provided all applicable standards, yet his First Amended Complaint suffers the same deficiencies as his original Complaint, such that it appears he is not able to state cognizable claims which now necessitates dismissal with prejudice.
1. Conditions of Confinement - Food
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be ...