The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO FILE
SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS (DOC. 14) Screening Order
Plaintiff Achilles Corelleone ("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 June 17, 2010. Doc. 1. On October 25, 2010, Plaintiff filed his first amended complaint. Doc. 13. On November 1, 2010, Plaintiff filed his first amended complaint again. Doc. 14. The Court will treat the November 1, 2010 amended complaint as the operative pleading.
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 Complaint And Analysis
Plaintiff is currently incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: warden Fernando Gonzales, secretary of CDCR Mathew Cate, doctor K. El Said, chief inmate appeals D. Foston, federal receiver J. Clark Kelso, sergeant Eaton and sergeant Dessenberger.
Plaintiff alleges the following. Defendants acted with deliberate
indifferent to his medical needs by failing to provide proper medical
treatment. They have also embarked on a campaign of harassment and
retaliation. Defendants ignored Plaintiff's complaint and failed to
answer his 602 inmate appeals. Plaintiff seeks injunctive*fn1
and declaratory relief. Plaintiff also seeks monetary and
Plaintiff fails to state a claim. Plaintiff's allegations are all conclusory, which is not sufficient to state any claims. See Iqbal, 129 S. Ct. 1949. Plaintiff will be provided leave to amend. The Court provides the following legal standards which appear to govern this action. ///
A. Eighth Amendment - Medical
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety . . . ." Id. at 837.
"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, ...