The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed January 4, 2011, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has filed an amended complaint.
As plaintiff has previously been informed, 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Although plaintiff has somewhat streamlined his amended filing (62 pages down from the 134-page original complaint), plaintiff fails to cure the substantive defects of the original complaint. In this incarnation, plaintiff names the following defendants, some of whom remain the same: Warden T. Virga; Associate Warden T. Lizarraga; Correctional (Corr.) Lieutenants D. Lieber and Conrad; Correctional Counselor A. Johnson; Psychologist Benzendine; Registered Nurse (RN) Chappell; Corr. Officer (C/O) Brown. Amended Complaint (AC), p. 3.
Plaintiff alleges that he was before the Folsom State Prison (FSP) institutional classification committee (ICC) on June 9, 2010, and July 14, 2010, and on both occasions gave notice that he was "very paranoid" about taking a cellmate due to his "extreme fear" of "seriously or fatally harming his cellmate." AC, p. 4. At the ICC hearing, defendant Virga went so far as to threaten plaintiff with a charge of making "terrorist threats," although plaintiff claims he was giving notice of his "paranoia" as a "good will" gesture in an effort to keep out of trouble. Id., at 5. Plaintiff claims that defendant Virga "made a very negligent statement" when he said: "'Well, Mr. Taylor, that's your decision. That's your choice, and you will be the one who answers to that. In order to go to protective custody/sensitive needs yard, you have to take a cellmate.'" Id. Plaintiff claims that defendants Virga; Lizarraga; Lieber; and Johnson collaborated to show deliberate indifference to a "life endangering situation," in violation of the Eighth Amendment. Id.
Plaintiff states that on May 5th, 2010, prison officials had sent plaintiff to administrative segregation (Ad Seg) for his refusal to be placed with a cellmate, but he interprets that placement as having been done based on plaintiff's "paranoia" about having a cellmate.
AC., p. 6. In order to avoid staying in Ad Seg, plaintiff agreed "under duress" to take a cellmate (apparently at the July 14, 2010 Ad Seg ICC hearing). Id. & Exhibit 1-C, p. 28. Thereafter, as plaintiff has previously alleged, on August 1, 2010, he was involved in a serious cellfight with his cellmate, Inmate Miller, CDC # K-61169, during which he claims to have received serious injuries in the form of cuts on his face and his left jaw "looked to be broken"; the doctor who saw him recommended an x-ray of his face. Id. After he had a conversation with defendant Benzedine, a psychologist, plaintiff states that defendants Conrad and Benzedine told him he was being sent to a suicide holding cell. Id. at 7-8. Plaintiff once again expresses his outrage that his cellmate, who only had a cut to his finger, was being returned to his normal housing unit. Id. at 7. Plaintiff was very dissatisfied with the explanation that there was no room in Ad Seg and "'you made mention of homicide on your celly.'" Id. at 8.
Apparently contradicting the basis for his allegations of how his warnings of his fear of causing harm to potential cellmates were ignored, plaintiff confusingly contends that defendants Benzedine and Conrad "were being spiteful," even though he acknowledges having stated at the time: "I did good by not killing him." AC, p. 8. In an effort to calm the plaintiff, who admits to being irate about the perceived injustice to which he was subjected, Benzedine and Conrad assured plaintiff he would only be in the suicide holding cell for one night, after which he would be sent to Ad Seg and thereafter to the general population, and in any event, his medical records were unattainable on Sunday. Id. Plaintiff does not contradict their alleged representation, but claims he was being unfairly treated. Id.
Plaintiff claims that on the night he spent in the suicide holding cell, he was unable to wash the blood off his swollen face and his efforts to obtain an ice pack by unnamed C/O's and defendant Nurse Chappell as he sat clothed only in a nylon suicide gown were rebuffed and he was told that nothing could be done for him while he was in that cell. AC, p. 9. Plaintiff claims he was thereby subjected to deliberate indifference to a serious medical need in violation of the Eighth Amendment. Id. at 9-10. Plaintiff claims that his recent medical grievances regarding pain and blurred vision have gone unanswered. Id. at 10.
Plaintiff was released from Ad Seg after the August 1st fight on August 13, 2010, and, on August 16, 2010, plaintiff was again involved in a serious fight with another cellmate. AC, pp. 11-12. Plaintiff states that he had, before the incident, informed defendant Brown that he and his cellmate were "not getting along," after which defendant Brown told plaintiff "we are not regulars; we're not doing any moves," telling plaintiff to ask the control booth officer in the tower. Id. at 11. Plaintiff did so, calling loudly to the control booth officer five or six times, but received no response. Id. When plaintiff returned to defendant Brown and unnamed officers to continue to express the urgency of a need for a cell change, Brown and the officers turned it into a laughing matter. Id. Plaintiff again recounts that defendant Brown told him there was a vacant cell but that he would not want to go there because the inmate was white. Id. When plaintiff said that he did not care where he went as long as he got out of the cell he was in, the officers continued to refuse his request; plaintiff told the officers of whom he knew only Brown's name he was writing them up. Id. Two or three hours later, plaintiff caused his cellmate, Inmate Hernandez, CDC # P774484, "very serious injuries" in a fight, resulting in plaintiff's being charged with "'battery on an inmate resulting in serious bodily injury,'" for which plaintiff apparently received two years in Ad Seg. Id. at 12. Plaintiff complains of the loss of privileges and other limitations to which he is subjected in Ad Seg housing. Id. at 12-13. Plaintiff claims defendant Brown violated his Eighth Amendment rights by being deliberately indifferent to the "imminent danger" of a "life-threatening situation." Id. at 12. He contends that he has permanent face scars, blurred vision and a lump beside his right eye. Id. He is on medication for headaches, suffers dizzy spells and still has not had his vision examined, and although his face has apparently been x-rayed once, he has not received another x-ray, as non-defendant Dr. Ali had promised. Id., at 13. Plaintiff suffers from "grave depression" and mental anguish because prison officials turned a blind eye to his expressions of "paranoia" regarding the "'imminent danger'" posed [by placing him with a cellmate]. Id. Plaintiff seeks compensatory money damages. Id. at 17.
Although plaintiff was granted leave to amend because he may have had colorable claims, plaintiff continues to fail to frame such claims in his amended complaint. With regard to his claims that he was wrongly placed with a cellmate, plaintiff has been informed that generally, prison officials' housing and classification decisions do not give rise to federal constitutional claims encompassed by the protection of liberty and property guaranteed by the Fifth and Fourteenth Amendments. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701 (1972). Nor does the Constitution guarantee a prisoner placement in a ...