The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
THIRTY-DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT ORDER DISMISSING AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Resolves Motion #10.) ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF
I. RELEVANT PROCEDURAL HISTORY
Kareem L. Brown ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 11, 2009. (Doc. 1.) On June 19, 2009, Plaintiff filed an Amended Complaint, which is now before the Court for screening. (Doc. 9.)
II. SCREENING REQUIREMENT
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 is only required to 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
To state a viable claim for relief, Plaintiff must set forth sufficient 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF AMENDED COMPLAINT
Plaintiff is presently incarcerated at Centinela State Prison in Imperial, California. At the time of the events at issue, Plaintiff was incarcerated at the Lerdo Pre-Trial Facility ("Lerdo") in Bakersfield, California. Plaintiff names only one defendant, Detention Sergeant Gonzales.
Plaintiff alleges as follows in the Amended Complaint. On October 14, 2004, while confined in state prison, Plaintiff was involved in an incident in which he was subjected to pepper spray by a correctional officer and exercised his right to defend himself. On February 17, 2005, Plaintiff was transferred from state custody to custody of the Kern County Sheriff to undergo criminal prosecution for the October 14, 2004 altercation. Plaintiff was charged with one count of assault by a life prisoner and one count of battery on a non-confined person. On February 18, 2005, Plaintiff was placed in the general population at Lerdo. While in the general population, Plaintiff did not have any confrontations with staff or other inmates.
On February 23, 2005, without any prior notice or opportunity to respond, Plaintiff was removed from the general population and placed in administrative segregation ("Ad-Seg"), without any explanation for his placement in Ad-Seg. Plaintiff later discovered that his placement was due to his criminal charges for assault on an officer.
Eleven months later, on January 13, 2006, Plaintiff was re-classified and released back into the general population where he remained for two months without any disciplinary infractions or confrontations with staff or inmates. On March 10, 2006, Plaintiff was again placed in Ad-Seg until his departure from Lerdo in January or February 2007.
While Plaintiff was housed in Ad-Seg, he was subject to hardships not present in the general population. In Ad-Seg inmates are isolated from other inmates, whereas they are not isolated in the general population. In Ad-Seg inmates are only allowed one hour of program, whereas inmates in the general population receive four hours of program in one unit and approximately nineteen hours of program in another unit. In Ad-Seg Plaintiff was compelled to wear restraints on both ankles while being escorted, whereas the general population inmates do not have to wear restraints while being escorted. In Ad-Seg Plaintiff was required to be escorted by two officers at all times within the facility and out, whereas in the general population only one officer was required per escort no matter how many inmates were being escorted. In Ad-Seg Plaintiff was not permitted to participate in sports activities with other inmates, whereas in the general population he was permitted to play sports with other inmates. In Ad-Seg Plaintiff was isolated from other inmates during visitation, whereas in the general population he was allowed an integrated visitation with other inmates. In AdSeg Plaintiff was housed in a cell by himself, whereas in the general population he was allowed a cell mate. In Ad-Seg Plaintiff was isolated when he attended the law library, whereas in the general population he was allowed access to the law library with other inmates no matter what their ethnic group. In Ad-Seg Plaintiff was required to wear an orange band around his wrist as evidence that he had either confronted or assaulted an officer, prompting the question "What are you in C Pod for?," whereas in the general population Plaintiff wore a red band on his wrist and was never asked what the red band meant. When Plaintiff was housed in Ad-Seg and transported to court he was isolated in a holding cell at the facility and then placed in a cage by himself on the transportation bus, whereas in the general population he was placed in a holding cell with other inmates then seated with other inmates on the transportation bus.
Plaintiff contends that even though he was a convicted prisoner sent to Lerdo from state prison, he was nevertheless a pre-trial detainee while at Lerdo. However, Plaintiff was not ...