The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FIRST SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND WITHIN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Marc Neufer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 17, 2009. (Doc. 1.) On April 2, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 15.)
On July 10, 2009, Plaintiff consented to the jurisdiction of a Magistrate Judge in this action, and no other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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 must only 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)). While factual allegations are accepted as true, legal conclusions are not. Iqbal at 1949. 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). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1964-65. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California. Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, when the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants James Yates (Warden, PVSP), Lieutenant James Bennet, Sergeant D. Huckabay, Correctional Officer ("C/O") D. Hatten, C/O J. Lyles, C/O F. Fergoso, C/O D. Macias, C/O N. Garza, Captain Williams, and John Doe (medical).
Plaintiff alleges as follows in the First Amended Complaint. On May 13, 2008, Warden James A. Yates, Captain Williams, Lt. James Bennet, and Sgt. D. Huckabay, supervisors of A-Facility, issued an order for members of the Dollar Bill Gang, a disruptive group, to be segregated, without taking appropriate precautionary measures to restrain the gang members and prevent them from finding out about the segregation plans. Plaintiff alleges that the gang members found out about the segregation plans and began attacking other inmates on the recreation yard. Three of the gang members attacked and viciously beat Plaintiff because he is Jewish. The responding officers, Lt. Bennet, Sgt. Huckabay, C/O Hatten, C/O Lyles, C/O Fergoso, C/O Macias, and C/O Garza, walked over to the scene and gave repetitious verbal commands as they watched Plaintiff suffer an attempt on his life, failing to intervene with force of any kind. Plaintiff was beaten until he was unconscious.
On May 22, 2008, an inmate who was in the segregated housing unit for attacking a Jewish inmate was recruited to "silence" Plaintiff and was deliberately forced into a cell with Plaintiff.
On June 5, 2008, prison officials released Plaintiff to D-Facility, knowing that his life was in danger.
On December 17, 2008, Plaintiff was threatened by a "homeboy" of the disruptive group and ...