FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 16) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS
Plaintiff Lil John E. West ("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 is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at Salinas Valley State Prison. The incidents described in the complaint occurred while Plaintiff was housed at Pleasant Valley State Prison ("PVSP").
The complaint in this action was filed on February 12, 2007. (Doc. 1.) On January 29, 2009, an order was issued dismissing the complaint with leave to amend. (Doc. 11.) A first amended complaint was filed on March 17, 2009. (Doc. 12.) An order dismissing the complaint with leave to amend for failure to state a claim was issued on June 28, 2010. (Doc. 15.) Currently before the Court is Plaintiff's second amended complaint, filed July 21, 2010. (Doc. 16.) Plaintiff names Defendants Warden James A. Yates, Correctional Officers Lane, Aguilar, and McGirt, Sergeants Fouch, Ponder, and Flores, and custody and medical staff. (Doc. 16, § III.)
II. Screening Requirement
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Under section 1983, the 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).
III. Complaint Allegations
Plaintiff again states that he can "show the chain of connection and chain of command" if he is given access to the sign-in sheets to show when officers were on duty and requests the production of documents. (Doc. 16, § IV, p. 4.)
Plaintiff alleges that after he and his cell mate were injured in a fight in the segregated housing unit yard, his stitches burst and he was unable to stop the bleeding for several hours. By the time he was provided with medical care, eight days later, he had developed a severe infection. To treat the infection he was given an injection and the infected area was scrapped.*fn1 (Id.) Plaintiff alleges that policy mandates that Defendants "inform the sergeant and lieutenant of any severe and or major problem when it is custodial or medical." (Id., p. 4.) The lieutenant has to then inform the captain and assigned officer of the day. (Id.) Defendants Flores and Fouch came in twice per shift. Plaintiff also alleges he was confined in a freezing cell with no bedding or underwear for three days and allowed no bedding for an additional seven days.*fn2 (Id., § IV.)
Plaintiff brings suit seeking an injunction for permanent soft soled boots and orthopedic tennis shoes, punishment of the correctional officers, transfer to a different prison,*fn3 and monetary damages. For the reasons discussed below, Plaintiff's complaint is dismissed with prejudice for failure to state a cognizable claim.
A. Eighth Amendment Conditions of Confinement
Liability under section 1983 exists where a defendant "acting under the color of law" has deprived the plaintiff "of a right secured by the Constitution or laws of the United States." Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment the plaintiff must "objectively show that he was deprived of something 'sufficiently serious,' and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)(citations omitted). Deliberate indifference requires a showing that "prison officials were aware of a "substantial risk of serious harm" to an inmates health or safety and that there was no "reasonable justification for the deprivation, in spite of that risk.." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994).
The circumstances, nature, and duration of the deprivations are critical in determining whether the conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim." ...