The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Homer Tyrone Lewis ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on February 17, 2010. (Doc. 1.) On August 11, 2010, Plaintiff filed his first amended complaint. (Doc. 9.)
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 Amended Complaint
Plaintiff was previously incarcerated at California State Prison-Corcoran ("CSP-COR") where the events giving rise to this action occurred. Plaintiff names as Defendants warden Derral G. Adams, chief deputy warden Maurice Junious, associate warden Raul Lopez, associate warden R. Davis, correctional counselor II D. De Azevedo, correctional counselor I P. Johnson, correctional sergeant A. Morrison, correctional sergeant J. Corbin, and correctional officer G. Tamayo.
Plaintiff alleges the following. On October 2, 2008, Plaintiff sent a letter of complaint as confidential mail to Defendants Adams, Junious, Lopez, Davis, Morrison, and Tamayo due to serious threats of violence against Plaintiff by Protective Housing Unit ("PHU") inmates. Plaintiff informed Defendants that PHU inmates James Prado and Mike Markhasev had threatened Plaintiff with violence. Plaintiff was never notified by any Defendants that they had received the letter until three weeks later.
On October 23, 2008, Defendants A. Morrison and G. Tamayo failed to supervise the PHU inmates as a result of Defendants failure to intercede, Plaintiff was assaulted by inmates Prado and Markhasev. Plaintiff sustained cuts to his mouth and face, bruises and swelling on his face and body, and was kicked in the groin. Following examination by medical personnel, Defendant Morrison summoned Plaintiff to the sergeant's office and informed Plaintiff that Defendant Morrison needed to interview Plaintiff regarding his letter. Defendant Morrison informed Plaintiff that Defendants Adams, Junious, Lopez, and Davis as well as Defendant Morrison were aware of Plaintiff's letter of complaint and were aware of the threats of violence against Plaintiff by inmates Prado and Markhesev. Defendant Morrison told Plaintiff that he had handled himself without help from custody staff, and to stop whining to Defendant Morrison's superiors regarding the lack of supervision by Defendants Morrison and Tamayo, because stuff happens at Corcoran State Prison.
Plaintiff was then placed in administrative segregation ("ad seg"), which Plaintiff refers to as maximum security, where Plaintiff is surrounded by known enemies who threaten to kill Plaintiff because of his PHU status. Plaintiff contends the removal of Plaintiff from PHU to ad seg was done in violation of due process per prison procedure.
Plaintiff was transferred from PHU to ad seg and remained in ad seg from October 23, 2008 until December 19, 2008 before receiving an Institutional Classification Committee hearing before Defendants Junious, Lopez, Davis, De Azevedo, and P. Johnson. Plaintiff contends that he was not provided with due process procedural safeguards.
Defendant Morrison denied Plaintiff's request to seek legal assistance from another inmate, Ernesto Fierro. On January 16, 2009, Defendant J. Corbin approached Plaintiff's cell door in ad seg and stated that he would put a plan in motion to have Plaintiff and inmate Fierro killed due to Office of Internal Affairs ("OIA") and Investigative Services Unit ("ISU") investigations against Defendant Corbin and other staff members. On January 19, 2009, Plaintiff notified Defendant Adams of Defendant Corbin's death threat. Defendant Corbin was later removed from ad seg and assigned a different post.
Defendants Adams, Junious, Lopez, Davis, De Azevedo, and Johnson conspired to document false and ambiguous confidential information in Plaintiff's central file to relocate Plaintiff from PHU to another institution. Plaintiff contends that Defendants De Azevedo, Adams, Junious, Lopez, Davis, and Corbin conspired against Plaintiff and retaliated against him for exercising his First Amendment rights by reclassifying and transferring Plaintiff to another institution.
Defendant De Azevedo stated to Plaintiff on February 18, 2009 that due to Plaintiff's staff complaints, civil litigation, and OIA and ISU investigations against staff, Defendant Adams, Junious, Lopez, and Davis planned with another PHU inmate to have Plaintiff transferred out of the PHU.
Defendants Adams, Junious, Lopez, Davis, De Azevedo, and inmate Calihan conspired to have Plaintiff be found a threat to safety and security at PHU and to create a fabricated enemy situation with inmate Calihan. Defendant De Azevedo documented this in Plaintiff's central file on January 26, 2009.
On March 5, 2009, Defendant Lopez held another ICC hearing and informed Plaintiff that he is being transferred from PHU because of the OIA and ISU investigations and filing of civil litigation and inmate grievances against staff. Plaintiff stated ...