The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CLAIMS (Doc. 64)
OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Darren Harris ("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 the California Men's Colony in San Louis Obispo, California. However, the events described in Plaintiff's complaint took place while he was incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff is suing under Section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names Skribner (warden), Williams (food manager), Lowden (correctional captain), Kim (chief medical officer), Klarich (physician), Jane Doe (medical assistant), and Olivarria (culinary custody staff) as defendants. For the reasons set forth below, the Court will recommend that Plaintiff's fourth amended complaint be dismissed, without leave to amend, for failure to state any claims upon which relief can be granted under Section 1983.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used 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. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the original complaint in this action on January 3, 2005. (Doc. #1.) On August 13, 2007, the Court determined that plaintiff's original complaint stated cognizable claims against Defendants Olivarria, Castro, Molina, Williams, Clark, Kim, Klarich, and Lowden. However, on September 14, 2007, Plaintiff filed a motion requesting leave to file an amended complaint. (Doc. #14.) Plaintiff filed his first amended complaint on November 5, 2007. (Doc. #22.) On December 6, 2007, the Court screened Plaintiff's first amended complaint and determined that it stated some cognizable claims and some non-cognizable claims. (Doc. #27.) Plaintiff was again given the option to file an amended complaint or to proceed only on the claims found to be cognizable.
Plaintiff filed a second complaint on June 30, 2008. (Doc. #45.) On March 16, 2009, Plaintiff's second amended complaint was dismissed for failure to comply with the Federal Rules of Civil Procedure. (Doc. #53.) Plaintiff was given a third opportunity to file an amended complaint. Plaintiff filed his third amended complaint on April 16, 2009. (Doc. #54.) On March 10, 2010, the Court dismissed Plaintiff's third amended complaint for failing to state any claims. (Doc. #59.)
Plaintiff filed his fourth amended complaint on May 24, 2010. (Doc. #64.) This action proceeds on Plaintiff's fourth amended complaint.
Plaintiff alleges that in July 2002, he was assigned to work in the kitchen. Plaintiff claims that he was assigned to use "powerwash soap" while in the kitchen and Defendants were aware that powerwash soap is a hazardous and corrosive substance.
On July 9, 2002, Defendant Williams ordered Defendant Olivarria to find inmate volunteers to clean the kitchen. After no inmates volunteered, Plaintiff was summoned to Olivarria's office and ordered to help clean the kitchen. Plaintiff protested because he was already busy and other inmates were sitting around doing nothing. Defendant Castro and Defendant Olivarria then informed Plaintiff that he was being ordered to help clean the kitchen and warned Plaintiff that he was disobeying a direct order. Plaintiff continued to protest but the officers threatened to write Plaintiff up for disobeying a direct order. Plaintiff then complied with the order and reported to Defendant Williams to help clean the kitchen.
Plaintiff informed Williams that he was not trained to perform the work required. However, Williams ordered Plaintiff to ask Olivarria to provide Plaintiff with a drum of powerwash soap. Plaintiff returned to the kitchen with an empty drum and Williams ordered Plaintiff to the drum with hot water and powerwash soap. Plaintiff alleges that the fumes from the powerwash soap caused him to cough. When Plaintiff complained to Defendant Williams, Williams told Plaintiff to "try not to breath[sic] it." (Am. Compl. ¶ 25, ECF No. 64.) Williams then ordered Plaintiff to take the drum containing the cleaning mixture and a bag of rags and load it on the lift. Plaintiff was then lifted up to clean the ceiling. Plaintiff complains that while he was washing the ceiling, the cleaning mixture got into Plaintiff's eyes and caused burning. After thirty minutes, Plaintiff was completely drenched in the cleaning mixture.
After a while, Plaintiff became nauseous and vomited. However, Defendant Williams warned Plaintiff that if he did not finish the job, Williams would inform Defendant Olivarria. Plaintiff continued to clean"for fear of reprisals." (Am. Compl. ¶ 27, ECF No. 64.) Hours later, Plaintiff's eyes were burning and his hands and feet were irritated. Plaintiff alleges that his skin was numb and began eroding. Plaintiff complained to Williams about his symptoms. When Williams asked Plaintiff if he was trying to get out of work, Plaintiff responded that he was not and wanted to see a doctor. Williams then became angry and told Plaintiff to tell Olivarria that he did not want to work.
Plaintiff then knocked on Olivarria's door. When Olivarria answered he asked, "What the fuck do you want now inmate?" (Am. Compl. ¶ 29, ECF No. 64.) Plaintiff complained about the irritation and burning and a group of officers in Olivarria's office laughed and accused Plaintiff of faking it. Olivarria told Plaintiff to "go back to work, or go get your stuff mother fucker." (Am. Compl. ...