The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (DOC. 46) OBJECTIONS DUE WITHIN 30 DAYS
Findings And Recommendations
Plaintiff Thon Ngot Sang ("Plaintiff") was a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceed on Plaintiff's first amended complaint, filed October 24, 2008, against Defendants Scribner, Flores, Torres, and Ybarra for violation of the Eighth Amendment. On May 19, 2009, Defendants filed a motion to dismiss Plaintiff's first amended complaint for failure to state a claim. On November 24, 2009, the Court dismissed Plaintiff's first amended complaint, but granted leave for Plaintiff to file a second amended complaint. On December 28, 2009, Plaintiff filed his second amended complaint, which is pending before the Court for screening.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Second Amended Complaint
Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: correctional officers R. Flores and J. Torres, lieutenant O. A. Ybarra, and warden A. K. Scribner.
Plaintiff alleges the following. On December 8, 2005, Plaintiff was suffering a severe bout of depression which brought on mental distress and claustrophobic anxiety. Plaintiff approached housing officers Defendants Torres and Flores to notify them of Plaintiff's psychological state. Plaintiff is a prison mental health recipient. Due to Plaintiff's prior suicide attempts and self-inflicted harm Plaintiff informed Defendants Torres and Flores that he need to be placed on single cell status or Administrative Segregation ("ad seg") until seen by a mental health care provider.
Defendant Torres found this reasoning insufficient. Plaintiff then stated that he felt overwhelmingly stressed because of claustrophobia from overcrowding, and due to inability to conform to certain political/ethnic rules which Plaintiff found unnecessary. Defendant Torres expressed disbelief that Plaintiff as an Asian American had prison politics concerns. Defendant Torres asked Plaintiff repeatedly if he had any enemy concerns, to which Plaintiff responded no. Plaintiff was issued a CDC 114-D/lock up order which indicated that Plaintiff had enemy concerns.
Defendant Lieutenant Ybarra then saw Plaintiff. Plaintiff denied having enemy concerns. Defendant Ybarra expressed disbelief that Plaintiff had any prison politics concerns. Plaintiff was placed in ad seg based on this false report. On December 14, 2005, Plaintiff was seen by the weekly Classification Review Committee, and then re-housed back into the general population. Plaintiff later discovered that the lock-up report had been typed by Asian inmate clerks.
On January 7, 2006, Plaintiff was brutally assaulted by two Asian inmates and suffered a severe jaw fracture from a responding officer's baton blow. Plaintiff was then placed back into ad seg for being the victim of an assault. Plaintiff alleges that Defendants acted with deliberate disregard of Plaintiff's mental and psychological ...