FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN DEFENDANTS AND CLAIMS THIRTY-DAY DEADLINE (Doc. 26)
Plaintiff Balwinder Singh Tung ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 14, 2010, the Court screened the second amended complaint and it was dismissed, with leave to amend, for failure to state a claim. (Doc. 25.) Currently pending before the Court is the third amended complaint, filed January 20, 2011. (Doc. 26.)
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 is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at Avenal State Prison. Plaintiff alleges that he is subjected to inhumane conditions due to the policy and custom of allowing the prison population to be at 200 percent of capacity. (Doc. 26, p. 6.) Defendants house inmates two to three to a cell which has subjected Plaintiff to an increased risk of violence. (Id., pp. 6-7.) Defendants "are either policy makers or enforcers and/or have/had final authority to approve or disapprove" the policies. (Id., p. 7.)
The policy of housing inmates above capacity has caused the air to be toxic to breathe without developing a fatal illness and Defendants have failed to prevent a "pattern of blizzardous [sic] assaults. (Id.) Plaintiff is being housed in a cell with two other inmates. The bunks have approximately two and one half to three feet of space between them. There is a partitioning wall between the bunks and the toilet. Plaintiff alleges he is provided with eighteen to twenty one square feet of space, filthy air, and a wretched environment that is highly unsafe, causing his life expectancy to be diminished by twenty years, subjecting him to cruel and unusual punishment. Plaintiff alleges that he has suffered from shortness of breath, bronchopneumonia, pleuropneumonia, pleurisy, parasitic, bacterial, viral, and fungal diseases and has diminished immunity due to being exposed to the "highly obnoxious environment" for over a decade. (Id., p. 8.)
Second and Third Cause of Action
Plaintiff alleges that he has not been provided an adequate diabetic diet and as a result developed cardiac, digestive, pulmonary, and other diseases. (Id., p. 9.) The meals provided include syrup, jelly, candies, ice cream, etc., which are poison to Plaintiff since he is diabetic. (Id., p. 10.) Plaintiff has developed problems with his feet, which could lead to other medical conditions. (Id., p. 11.) The policy of providing an inadequate diet is "conscious, intentional, malicious, wanton, retaliatory and conspired with deliberate indifference." (Id., p. 13.)
Plaintiff has been a victim of seven prisoner assaults due to the policies or customs established by Defendants. On May 14, 2007, Plaintiff was assaulted and had his personal property stolen. (Id., p. 14.) On March 4 and May 4, 2006, Plaintiff was assaulted. (Id., pp. 14, 15.) On April 9, 2004 and May 18, 2004, Plaintiff was assaulted causing injuries. On July 7, 2002 and May 13, 2001, Plaintiff was assaulted. The policy of allowing overcrowding approved by Defendants excessively increased the probability of assaults. (Id., p. 15.) If Plaintiff had been released on his calculated parole date, which has long past, he would not have been subject to at least six of the assaults. Defendant Schwarzenegger has the power to commute the sentences of prisoners who do not have calculated parole dates. During the nineteen years that Plaintiff has been incarcerated "multimillion inmate(s) had been released without any hearing(s)." (Id., p. 16.)
Plaintiff brings this suit naming Defendants Arnold Schwarzenegger, Matthew L. Cate, and "Does One through an unknown number" in their individual and official capacities for deliberate indifference in violation of the Eighth Amendment. (Id., pp. 1-2, 4.) Plaintiff is seeking compensatory, punitive, and injunctive relief, including immediate release of ...