The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On June 19, 2006, (Doc. 18) the court granted defendant's motion to dismiss and ordered plaintiff's amended complaint dismissed with leave to filed a second amended complaint. On November 3, 2006, plaintiff filed a second amended complaint (Doc. 22), that defendant requested to be screened. On December 26, 2006, the court screened and then dismissed the second amended complaint (Doc. 25). Plaintiff appealed the ruling and on November 6, 2008, the United States Court of Appeals for the Ninth Circuit, vacated and remanded (Doc. 34). The Court of Appeals found that plaintiff's claims appeared to be colorable for screening but expressed no opinion whether the case would survive a motion for dismissal under Fed. R. Civ. P. 12(b)(6).*fn1
Pending before the court is defendant's February 19, 2009, (Doc. 37) motion to dismiss the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). After carefully reviewing the record, the court recommends that defendant's motion be granted.
Standard In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, 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, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Plaintiff is a state prisoner sentenced to life with the possibility of parole, who at all times relevant to this action, was in the custody of the CDCR. Second Amended Complaint ("Compl."), at 2. The only defendant named in the Second Amended Complaint is Jeanne Woodford, former Director of the CDCR and plaintiff seeks only injunctive and declaratory relief. Compl., at 1.
Plaintiff claims that prison overcrowding has resulted in multiple constitutional violations including causing defendant stress, tension, and constant fear: (1) of assault from living in the prison's open dorm facility; (2) from being housed with inmates who are mentally and physically ill; and (3) of contracting a contagious or infectious disease. Opposition to Motion to Dismiss ("Opp."), at 4. Plaintiff further contends that overcrowded conditions adversely affect his prison location (in relation to where his family lives), as well as his ability to participate in prison self-help and therapy programs. Opp., at 4. Lastly, plaintiff contends that prison conditions have resulted in crowding and understaffing in the medical, dental, inmate mailroom, visiting room, and law library, which has caused him to feel stress, tension, and unsafe. Id. As relief, plaintiff seeks to permanently enjoin defendant from housing so many inmates at CSP-Solano, where he is housed. Compl., at 7.
The gravamen of this action is that CSP-Solano is unconstitutionally overcrowded. Allegations of overcrowding alone are insufficient to state a claim under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392 (1981); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989). Where crowding causes an increase in violence or reduces the provision of other constitutionally required services, or reaches a level where the institution is no longer fit for human habitation, however, the prisoner may be able to state a claim. Balla, 869 F.2d at 471.
In reversing the court's December 26, 2006, screening order, the Court of Appeals, cited Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) and Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984). Akao reversed a district court's dismissal of a claim that alleged overcrowding caused increased stress, tension and communicable disease among the inmate population. Id. Toussaint affirmed the district could holding that relied on specific facts that considered cell size and exercise conditions in relation to overcrowding to find an Eighth Amendment violation. However, as the following paragraphs make clear, plaintiff's allegations only demonstrate a potential effect that overcrowding may have, or allege a highly speculative cause and effect relationship between overcrowding and the alleged harm to be avoided, or refer to "rights" denied by overcrowding which find no source in the Constitution. Plaintiff has failed to plead sufficient facts, that are plausible on their face, for the court to ...