FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (Doc. 15) THIRTY-DAY DEADLINE
Plaintiff George Berry Strong ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on January 17, 2008. (Doc. 1.) The complaint was screened by the Magistrate Judge on May 27, 2009, and the complaint was dismissed, with leave to amend, for failure to state a claim. (Doc. 12.) Currently before the Court is the first amended complaint, filed August 12, 2009. (Doc. 15.)
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)).
Under section 1983, 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. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[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.'" Iqbal, 129 S.Ct. at 1949 (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. Iqbal, 129 S.Ct. at 1949. "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).
III. Amended Complaint Allegations
After Plaintiff was incarcerated he was approved to wear his personal tennis shoes due to a foot deformity. (Doc. 15, Amend. Comp., p. 4:14-20.) On October 26, 2004, Plaintiff was determined to be permanently mobility impaired due to a severe foot deformity. (Id., p. 16.) On December 16, 2007, while incarcerated at the California Substance Abuse Treatment Facility, Plaintiff was denied visitation because he was wearing his personal tennis shoes. He was informed that Defendants Ken Clark and Susan Hubbard had implemented a new rule that inmates were prohibited from contact visits when they were wearing their personal tennis shoes. Plaintiff was required to wear state issued tennis shoes during his five hour visitation and suffered severe pain and swelling in both feet. (Id., ¶ 21.) During the visitation he observed that other inmates with wheelchairs, canes, crutches, walkers, prosthetic devices, and orthopedic boots were allowed visitation. (Id., ¶ 22.)
On December 17, 2007, Plaintiff saw medical staff for severe pain and swelling to his feet. Medical staff reviewed his medical file and issued a chrono so Plaintiff could wear his personal tennis shoes. (Id., ¶ 23.) On December 19, 2007, Plaintiff sent Defendants Hubbard and Clark a letter informing them that his medical documentation was not being honored based upon the adoption and implementation of the rule that personal tennis shoes were not allowed in the visiting room. He included medical documentation and stated the regulation was discriminatory and causing him severe pain and swelling in both feet. (Id., ¶ 24.)
On December 27, 2007, Plaintiff was not allowed visitation because he was wearing his personal tennis shoes. (Id., ¶ 25.) On January 2, 2008, Plaintiff was advised that his medical documents would not be honored and he could not wear his personal tennis shoes in the visiting room. (Id., ¶ 26.) On that same day, Plaintiff sent a letter to Defendant Clark informing him that he was being discriminated against by not being allowed to wear his personal tennis shoes to visitation. (Id., ¶ 27.) A similar notice was sent to Defendant Hubbard on January 3, 2008. (Id., ¶ 28.)
Plaintiff alleges that Defendants Hubbard and Clark violated his right to equal protection under the Fourteenth Amendment and his right to be free from cruel and unusual punishment under the Eighth Amendment. (Id., ¶¶ 31, 41.) As a result of being required to wear state issued shoes to visitation he has suffered physical injuries in the form of damage to his feet and knees and balance problems. (Id., ¶ 36.) He is seeking monetary damages of $500,000.00.
Plaintiff alleges that Defendants exhibited deliberate indifference and wanton infliction of pain by implementing and enforcing the rule prohibiting him from wearing his personal tennis shoes to visitation. (Doc. 15, ¶ 45.) 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). The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, ...