The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge
SECOND SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 9.) ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT
I. RELEVANT PROCEDURAL HISTORY
Roy A. Mason ("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 February 8, 2008. (Doc. 1.) On June 2, 2009, the Court issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 6.) On July 22, 2009, Plaintiff filed the First Amended Complaint, which is presently 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 Avenal State Prison ("ASP") in Avenal, California, where the events at issue allegedly occurred. Plaintiff names as defendants J. Hartley (Warden), Lieutenant ("Lt.") Buck, Sergeant ("Sgt.") Ybarra, Sgt. T. Amaro, Sgt. Hurl, and Correctional Counselor Wagner ("Defendants"). Defendants are all employees of the CDCR at ASP.
Plaintiff alleges as follows in the First Amended Complaint. Plaintiff is wheelchair-bound due to a spinal cord injury and suffers from partial paralysis of the lower extremities, chronic back pain, painful spasms in his left leg, muscular atrophy in his lower extremities and buttocks, bladder and bowel incontinence, loss of sensation in his left leg, and loss of equilibrium. Cold air or wind intensifies his pain to excruciating levels that render him sleepless without his medication. Plaintiff maintains he is disabled within the meaning of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA").
On April 31, 2007 at approximately 1:00 p.m., Plaintiff met with Sgt. Amaro on the yard outside the program office to contest his placement in another housing unit which was air-conditioned and was not furnished with a bed suitable for a person with Plaintiff's disabilities. As Plaintiff described the effect of cold air on his disabilities, Sgt. Amaro acted nonchalant and distracted and did not respond. Sgt. Amaro told Plaintiff to wait outside his office as he went inside. After some time, Plaintiff inquired about the whereabouts of Sgt. Amaro and was told by Sgt. Hurl that he "probably went home."
Sgt. Hurl and Sgt. Ybarra asked Plaintiff what he wanted to speak to Sgt. Amaro about. As Plaintiff advised them of his problems, they became visually upset and ordered Plaintiff into the program office. Plaintiff was then called to speak with Lt. Buck in the presence of Sgt. Ybarra and Sgt. Hurl. Plaintiff advised the three officers of his disability problems, which caused Lt. Buck to become hostile. Plaintiff was told by the three officers that he could either move into the alternate housing or go to administrative segregation ("Ad-Seg"). Plaintiff stated that he would rather go to Ad-Seg than to a housing unit with a bunk that would hinder his disabilities and cause him pain. Lt. Hurl then stated, "You go back to your corner." After twenty minutes, Plaintiff told Sgt. Buck that he was willing to move to the proposed housing unit. Sgt. Buck replied that it was "too late" and said, "You will be spending the night with the coffee pot," pointing to a coffee pot inside an office.
After some time, Plaintiff was called into another office to meet with Correctional Counselor Wagner. Wagner looked very angry and asked Plaintiff what was going on. Sgt. Ybarra and Sgt. Hurl were also present. As Plaintiff began to speak, Wagner interrupted him and yelled, "You will not be going to a wheelchair accessible Ad-Seg cell. We are not going to move someone else to accommodate you! Go back over there!" Sometime between 5:00 p.m. and 6:00 p.m., Wagner left the program office, and Plaintiff was left in the corridor for approximately eighteen hours. Due to his detention in the corridor, Plaintiff was not present for some of the routine inmate counts required by California regulations. During the eighteen-hour period, Plaintiff had no blanket, food, or water.
With no access to a wheelchair accessible restroom, Plaintiff was unable to change his diaper and urinated on himself, soaking his clothing. Plaintiff suffered from painful spasms and cramps in his back, legs, and neck, which affected his blood circulation. Plaintiff also developed a urinary tract infection causing excruciating pain in his pelvic area, bleeding from his penis and rectum, headaches, and tension. Plaintiff also suffered emotional distress, humiliation, and anxiety from his concern about long-term effects on his liver and kidneys.
Plaintiff requests monetary damages, attorney fees, ...