The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS
Plaintiff Tommy Ray Keeton, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 27, 2009.
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 must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
II. Plaintiff's Eighth Amendment Claims
Plaintiff, who is currently housed at California State Prison-Sacramento, alleges that while he was at California State Prison-Corcoran, Defendants Sergeant Warren and Correctional Officers Gonzales and Olivia violated his rights under the Eighth Amendment of the United States Constitution.
Plaintiff alleges that on September 29, 2004, Defendant Gonzales kicked a manilla envelope containing his legal documents into the center of the dayroom floor and would not return them. After Plaintiff's request to speak to Defendant Warren was denied, Plaintiff covered his cell window in order to cause a supervisor to be summoned. When Defendant Warren arrived, Plaintiff followed instructions to uncover his window and cuff up, and was re-housed in his cell on strip cell status.
At dinner time, Plaintiff, who is diabetic, attempted to inform Defendant Gonzales that he was having a diabetic reaction and asked Gonzales to summon medical staff. Defendant Gonzales ignored his request and refused to give him a dinner tray, which caused Plaintiff to pass out from low blood sugar.
The next day, Plaintiff was extracted from his cell and placed in the mental health crisis unit. Plaintiff alleges he was still unconscious from the night before and during the cell extraction, Defendant Warren used pepper spray, which was unnecessary given his state of unconsciousness.
Under section 1983, Plaintiff is required to show that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. ...