The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks relief pursuant to 42 U.S.C. § 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff filed the original complaint on April 5, 2010, alleging that defendants failed to protect him in violation of the Eighth Amendment. On May 12, 2010, the court issued a screening order where plaintiff's complaint was dismissed with leave to file an amended complaint within twenty-eight days. The court outlined the deficiencies in plaintiff's complaint and set forth what would be required in an amended complaint. On July 13, 2010, plaintiff filed a response to the court's screening order. On August 3, 2010, the court construed plaintiff's response as an amended complaint and dismissed it with leave to amend. The court noted that plaintiff's response merely added additional facts but did include the information from the original complaint. The court informed plaintiff that pursuant to Local Rule 220, the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. Plaintiff was granted twenty-eight days to file a proper amended complaint.
The twenty-eight days passed and plaintiff did not file a proper amended complaint. To the extent, that plaintiff's August 10, 2010, letter could be construed as an amended complaint, plaintiff failed to cure the deficiencies of his original complaint.
On October 1, 2010, the undersigned issued findings and recommendations that this action be dismissed due to plaintiff's failure to follow court orders and file a proper amended complaint. On October 12, 2010, plaintiff filed objections and again set forth arguments in support of his claims. To construe the objections as a viable complaint the undersigned would need to reference parts of other filings which in the experience of the undersigned would lead to difficulties as the litigation progressed. Therefore, plaintiff was given leave to file an additional complaint.
Plaintiff filed an amended complaint on November 17, 2010. While plaintiff has labeled the filing as a second amended complaint, this is actually plaintiff's fourth or fifth attempt at filing a proper complaint. However, plaintiff's latest complaint contains the same deficiencies as the prior attempts. Plaintiff names two defendants, Deputy Larcom and Deputy White. The body of the complaint only contains one brief reference to Deputy Larcom and does not mention Deputy White.
Plaintiff states that he was attacked by another inmate on January 17, 2004, and he pressed the emergency button but "they" did not respond. Plaintiff states that the incident occurred in front of the control booth window so plaintiff "knows" they saw it. Plaintiff describes another incident when he was assaulted, pressed the emergency button but no one responded and there was a crowd in front of his cell, that were noticeable from the control booth window. Plaintiff then describes another assault by an inmate where Deputy Larcom intervened.
Plaintiff never alleges that the defendants were in the control booth when the attacks occurred or that they witnessed them. Plaintiff merely states that the attacks occurred in view of the control room. It is not even clear if these defendants were working when these attacks occurred. Similarly, plaintiff makes no allegations that these defendants were responsible for responding to the emergency alarms.
While these oversights could be corrected and addressed in an amended complaint, the undersigned has repeatedly informed plaintiff of these deficiencies and given him many, many opportunities to provide more information. Despite all these extra chances, plaintiff has again failed to provide sufficient facts to support the complaint. Essentially, plaintiff has repeated the same allegations that he was assaulted and these defendants are liable.
Were the court to serve this complaint, it would essentially hold defendants to a strict liability standard that all prison officials are responsible for anything that befalls an inmate. Plaintiff bears the burden of alleging sufficient facts. "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Plaintiff has failed to present sufficient factual matter, instead setting forth the barest of allegations. The facts presented by plaintiff are insufficient to allow the court to draw the reasonable ...