The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND(ECF No. 1)AMENDED COMPLAINT DUE SEPTEMBER 6, 2011
On December 7, 2009, Plaintiff Harold Walker, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 4). Plaintiff's Complaint is before the Court for screening.
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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 Atlantic 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. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
P.L. Vazquez, Warden, Jane Doe and John Doe, Associate Wardens, John Doe, Facility Captain, and J. Ortega, Correctional Counselor II and Appeals Coordinator, are all named defendants in this action.
Plaintiff alleges the following occurred at Wasco State Prison: On November 9, 2009, a fight occurred in Building 4 of Facility D between Black inmates and Hispanic inmates affiliated with the Bulldog prison gang. Plaintiff was housed in Building 5 of Facility D and was not involved in the fight. In response to the fight, the Defendants confined to their cells Black inmates and Bulldog affiliated Hispanic inmates then living in Building 5 of Facility D. Plaintiff was among those confined. As a result of his confinement, Plaintiff was deprived of access to the yard, day room, and canteen from November 9, 2009, when the fight occurred, until at least December 7, 2009, when this Complaint was filed. During this period Plaintiff and the other inmates subject to this lock down were confined to their cells. The only inmates so restricted were Black prisoners and Bulldog affiliated Hispanic prisoners housed in Building 5 of Facility D. Caucasian and non-Bulldog affiliated Hispanic inmates were not subject to the cell confinement.
Two of Plaintiff's appeals regarding the lockdown conditions were attached*fn1 to the Complaint as Exhibits 1 and 2. Exhibit 1 is an appeal dated October 22, 2009, more than two weeks prior to the fight described in the body of the Complaint. The appeal marked as Exhibit 1 makes no mention of a fight. There are no facts in the body of the Complaint that connect the alleged violations to the Exhibit 1 appeal; therefore, the Court will disregard Exhibit 1 as an unrelated claim.*fn2
Exhibit 2 is an appeal filed by Plaintiff after November 9, 2009 that refers to an altercation in Building 4 of Facility D as the catalyst for cell confinement. In this appeal Plaintiff asserts "being subjected to cruel and unusual punishment by being denied at least 10 hours a week of exercise time on the yard plus at least 10 hours a week of out of cell time or day room time." (Compl. at 12). Exhibit 2 is not inconsistent with the allegations in the body of the Complaint; a prisoner confined to his cell is also denied at least ten hours of out-of-cell ...