The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING THIRD AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 27) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Gemmel Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 28, 2009. Doc. 1. The Court screened Plaintiff's complaint on May 8, 2009, and found that if failed to state a claim. Doc. 9. Plaintiff was provided with the opportunity to file an amended complaint. On June 2, 2009, Plaintiff filed his first amended complaint. Doc. 13. On October 21, 2009, the Court issued Findings and Recommendations recommending dismissal of certain claims. Doc. 16. The Magistrate Judge had found that Plaintiff stated cognizable Eighth Amendment claims as to Defendants Gonzales, Carrasco, Zanchi, Peterson, and Gentry for failure to protect, but Plaintiff failed to state any other claims. On December 21, 2009, the District Judge assigned to this action adopted the findings and recommendation. Doc. 18.
On December 24, 2009, Plaintiff filed a motion to amend his civil rights complaint. Doc. 19. On June 22, 2010, the District Judge granted Plaintiff's motion. Doc. 22. Plaintiff filed his second amended complaint on June 22, 2010, prior to receiving the District Judge's order. Plaintiff omitted his cognizable claims. Plaintiff then filed a motion on August 16, 2010, requesting clarification as to whether he had preserved his cognizable claims. On November 30, 2010, the Court issued an order requiring Plaintiff to file a third amended complaint if he wished to preserve his cognizable claims. Plaintiff filed his third amended complaint on December 30, 2010. Doc. 27.
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 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of Third Amended Complaint
Plaintiff was incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names the following as Defendants: F. Gonzales, warden of CCI; Facility 4A captain D. Zanchi; associate warden M. Carrasco; Facility 4A lieutenant J. Peterson; director of D.R.B. S. Hubbard; correctional counselor III of CSU S. Albritton; I.G.I. lieutenant Gentry; and correctional counselor II D. Cowee. Plaintiff also names E. Arnold, chief of the CSU, in the body of his third amended complaint.
Plaintiff alleges the following. On November 20, 2007, Defendants failed to protect Plaintiff from harm. Pl.'s Third Am. Compl. 5.*fn1 Plaintiff had been previously found guilty of involvement in a prison riot between black and Hispanic inmates. Id. Plaintiff received a secured housing unit ("SHU") term of four months, and was released on September 29, 2007. Id. Plaintiff went before the Institutional Classification Committee ("ICC") on October 24, 2007. Id. Plaintiff was cleared to be housed in the 4A general population maximum security yard. On November 17, 2007, CCI prison officials had received information of security concerns for Plaintiff, but failed to act. Id.
On November 20, 2007, Plaintiff was attacked by two black inmates. Id. at 6. Defendant Gonzales as warden was liable for failing to follow departmental policies or procedures. Id. at 7. Defendant Carrasco as associate warden was responsible for failing to prevent serious harm to Plaintiff. Id. Defendant D. Zanchi was liable for failing to take any steps to prevent this attack. Id. Defendant Peterson was responsible for failing to take any steps to prevent the attack. Id. at 7-8. Defendant Gentry was in charge of the institutional gang investigation unit, but failed to follow departmental procedures to prevent this attack. Id. at 8. Defendant D. Cowee processed the confidential information, but failed to follow departmental procedures to prevent this attack. Id. Plaintiff contends that CCI Defendants knew of this impending attack and failed to act to prevent it. Id. at 50.
Plaintiff contends that Defendant Carrasco attempted to turn Plaintiff as a snitch by offering Plaintiff placement in the sensitive needs yard ("SNY"). Id. at 51. Plaintiff refused. Id. The ICC then recommended Plaintiff be placed on indeterminate SHU term. Id. Plaintiff contends that Defendant Carrasco retaliated against Plaintiff for his refusal to become a snitch by recommending him for indeterminate SHU. Id. The matter was referred to the Departmental Review Board ("DRB") for housing placement. Id. at 52.
On June 27, 2008, the DRB, which includes Defendants S. Hubbard, S. Albritton, and E. Arnold, elected to retain Plaintiff for an indeterminate SHU term, not for safety reasons but because of his assaultive and disruptive disciplinary history. Id. at 9-11. Plaintiff was not allowed to appeal this decision.
Plaintiff alleges a violation of the Eighth Amendment, the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. Plaintiff requests as relief declaratory judgment; a permanent injunction against CDCR or DRB to release Plaintiff from the SHU ...