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Horace Bell v. Kurtz

April 29, 2011

HORACE BELL, PLAINTIFF,
v.
KURTZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND THIRTY-DAY DEADLINE(ECF No. 10)

I. Screening Requirement

Plaintiff HORACE BELL ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was removed from Kern County Superior Court by Defendant Kurtz.*fn1 Currently pending before the Court is the first amended complaint, filed November 29, 2010. (ECF No. 10.)

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 incarcerated at Kern Valley State Prison. Plaintiff alleges that Defendant Kurtz requested his cell mate to tell her that Plaintiff threatened him so she could have something to tell her supervisor. When that failed she authored a document and had Plaintiff placed in administrative segregation. Defendant Kurtz retaliated against Plaintiff for filing grievances and staff complaints. (Amend. Compl. 3, ECF No. 10.)

C. Smith told Dr. Akkanno to take away Plaintiff's chrono for a medical shower and Plaintiff urinated on himself daily. Plaintiff was not provided with extra soap or laundry and had skin irritation and rash in his groin area. (Id.)

Plaintiff is seeking $10,000 in damages and restoration of his good time credits and job assignment. Plaintiff's allegations are insufficient to state a cognizable claim for a violation of his federal rights. Plaintiff will be granted one final opportunity to amend his complaint to set forth his allegations of retaliation by Defendant Kurtz.

III. Discussion

A. Eighth Amendment

To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). In order to find a prison official liable under the Eighth Amendment for denying humane conditions of confinement within a prison, the official must know "that inmates face a substantial risk of serious harm and disregard[] that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Plaintiff's complaint does not allege facts that would show he was deprived of something 'sufficiently serious' or make a subjective showing that Defendant Kurtz acted with deliberate indifference to his health or safety. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Defendant asking Plaintiff's cell mate to say that Plaintiff threatened him does not rise to the level of an Eighth Amendment violation. Additionally, the transfer ...


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