ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO (Doc. 16) THIRTY-DAY DEADLINE
Plaintiff Jesse Gholston ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was filed on July 31, 2009. (Doc. 1.) On December 29, 2009, the complaint was dismissed, with leave to amend, for failure to state a claim. (Doc. 7.) Currently pending before the Court is the first amended complaint, filed April 9, 2010. (Doc. 16.)
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).
II. Complaint Allegations
Plaintiff, a developmentally disabled inmate in the custody of the Department of Corrections and Rehabilitation, is incarcerated at California State Prison, Corcoran. In February 2007, Plaintiff was placed in a cell due to a involuntary cell assignment. (Doc. 16, ¶ 12; p. 13.) Plaintiff, fearful of the change, was told by correctional officers that his new cellmate was an "alright standup guy." (Id., ¶¶ 13, 14.) Within twenty four hours of being placed in the new cell, Plaintiff was raped and beaten by his cellmate, inmate Briggs. (Id., ¶ 14.) Inmate Briggs identified himself as a member of the "Black Gorilla Family" and told Plaintiff that if he told what had happened he would be killed. Plaintiff believed he would be killed if he told anyone what had occurred. (Id., ¶ 17.)
Every day Plaintiff requested that he be moved to a new cell, but did not tell correctional officers why because he was "under duress." (Id., ¶ 15.) On one occasion, Plaintiff went to Defendant A. Morrison and begged to be moved to another cell "while tears ran down his face" and Defendant told him "to man-up." (Id., ¶ 18.) Plaintiff alleges that on numerous occasions officers shined their flashlights into the cell and they observed "Plaintiff pinned under his rapist['s] massive body in such close proximity that they would have seen the tears streaming down the Plaintiff's pain filled/terror stricken face and, the sweat of his attacker dripping down onto the Plaintiff's body" without intervening. (Id., ¶¶ 19, 23.) After several months of being raped and beaten every day, Plaintiff told a sergeant what was occurring and he was removed from the cell. (Id., p. 15.)
Plaintiff alleges that Defendants R. Gaulden, Lloren, J. Bernal, M. Groeneveld, and A. Morrison were deliberately indifferent to his safety by ignoring his constant requests to be moved to a different cell. (Id., ¶ 22.)
Plaintiff alleges that Defendant Warden Derral Adams did not assure that staff complied with the "extensive custody staff training modules" to assure the safety protocol established for the developmentally impaired under the Clark v. California remedial plan.*fn1 (Id., ¶ Defendant Adams "knew or should have known that his conduct, attitudes and actions created an unreasonable risk of serious harm to [P]laintiff." (Id., ¶ 32.)
Plaintiff is seeking declaratory relief that the actions of Defendants violated his federal rights and compensatory and punitive damages. (Id., § VI.) For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given one final opportunity to file an ...