The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE THIRD AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
Plaintiff Robert Anthony Winters ("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 this action on November 4, 2008. On March 23, 2009, Plaintiff filed a second amended complaint. (Doc. 20).
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)).
Under section 1983, Plaintiff is required to show that Defendants (1) acted under color of state law, and (2) committed conduct which deprived Plaintiff of a federal right. Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007). "A person deprives another of a constitutional right, where that person 'does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'" Id. at 988 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). "[T]he 'requisite causal connection can be established not only by some kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Id. (quoting Johnson at 743-44).
B. Summary of Plaintiff's Second Amended Complaint
Plaintiff is currently housed at the California State Prison - Corcoran, where the events at issue in this action occurred. Plaintiff names Director Suzan Hubbard, Warden Derral Adams, Chief Deputy Wardens L. Watson and J. Hartley, Associate Wardens D. Ortiz, R. Lopez and Sheppard-Brooks, Captains F.P. Field and M. Jennings, Acting Captain M. T. Cisneros, Lieutenants Kavanaugh, F. Munoz, and E. Mazon-Alec, Correctional Counselor M.L. Gonzales, Sergeant D. Tercero, Facility Sergeants J. Hernandez and L. A. Martinez, and Facility Officer P. Munoz as defendants. Plaintiff alleges violations of the Eighth and Fourteenth Amendments of the United States Constitution, and seeks injunctive relief and money damages.
Plaintiff identifies himself as a member of an "identified hispanic group" that programs peacefully with the bulldog street gang (hereinafter "Bulldogs"). (Doc. 20, Amended Complaint, ¶.23). Plaintiff and the members of the Bulldogs are housed in CSP-Corcoran 3A Facility ("3A-Facility"). (Id., ¶24). Plaintiff alleges that there is a history of violence between the Bulldogs and the Southern gangs ("Southerners") and that they are enemy groups. (Id.).
Plaintiff alleges that in 2006, defendant D. Ortiz approved a plan to re-integrate 3A Facility with Southerners ("Re-Integration Plan"). (Id., ¶30). Plaintiff alleges that defendant D. Adams pre-approved the plan. (Id., ¶29). Plaintiff alleges that the plan allowing for the transfer of Southerners to be housed at 3A Facility was also approved by defendant Hubbard. (Id., ¶24). Plaintiff alleges that defendants Adams, Ortiz and Hubbard were aware of the history of violence between the groups when they implemented the re-integration plan. Plaintiff alleges that there have been numerous incidents of violence between the groups since the re-integration, and alleges a risk of harm to health and safety. Plaintiff alleges that defendants continue to enforce a policy that is so deficient that it is a repudiation of constitutional rights. (Id., ¶31).
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation where prison officials know of and disregard a substantial risk of serious harm to the plaintiff. E.g., Farmer at 847; Hearns at 1040.
Upon review of Plaintiff's second amended complaint, the Court cannot find that Plaintiff states cognizable claims against defendants D. Ortiz, D. Adams or S. Hubbard for violation of the Eighth Amendment related to the Re-Integration Plan. Plaintiff is neither a member of the Bulldogs nor the Southerners. Plaintiff has not sufficiently alleged that defendants knew of and disregarded a substantial risk of harm to him given that there are no allegations of a particularized risk of harm to Plaintiff. Farmer at 847. Generalized allegations of a risk of harm ...