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James Milliken v. R. Lopez

August 8, 2011

JAMES MILLIKEN,
PLAINTIFF,
v.
R. LOPEZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISREGARDING PLAINTIFF'S MOTION TO AMEND AS UNNECESSARY (DOC. 10)

ORDER REQUIRING PLAINTIFF EITHER TO FILE A SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (DOC. 11) / RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Background

Plaintiff James Milliken ("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 10, 2011. Plaintiff filed his first amended complaint on July 11, 2011. Doc. 11.*fn1

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 Complaint

Plaintiff is currently incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants Warden Raul Lopez, sergeant R. Vogel, and supervisors of building trades S. A. Marshall and L. Cruz.

Plaintiff alleges the following. On June 24, 2010, Plaintiff was moved to cell 4-B-1-R #06. The plumbing was in disrepair such that sewer water was leaking into the cell, forming puddles on the floor and filling a large hole adjacent to the toilet.

On June 25, 2010, Plaintiff informed Defendants through an inmate request that he and his cell mate, inmate Bishop, were being exposed to unconstitutional conditions in their cell. Plaintiff requested to be moved to a more habitable cell. Plaintiff requested an interview with Defendant Lopez. This request was denied. On June 29, 2010, Defendant Vogel was in charge of a building search. When he approached Plaintiff's cell, Plaintiff told Defendant Vogel of the leak. Plaintiff asked to have a plumber come and fix the leak/hole or to be moved to a safer cell.

Defendant Vogel denied the move request, but did say he would contact plumbers to have the leak fixed. The leak/hole was not fixed. Plaintiff and his cell mate mopped up the cell with their bare hands, and without cleaning supplies. Plaintiff became ill, suffering diarrhea, stomach cramps, chest congestion, and migraines. Plaintiff requested to be seen by a doctor on July 12, 2010, and was seen on July 14 and July 23.

Mosquitos also infested the cell because of the stagnant water inside. On July 23, 2010, Defendant Vogel again was conducting a search of all the cells in the building. Plaintiff again expressed his concerns to Defendant Vogel, and mentioned becoming ill. Defendant Vogel again said he would see what he could do, but nothing was done.

Plaintiff was provided only two towels every six months, and only a half bar of soap per week. Plaintiff used one of his towels and the half bar of soap to mop the sewage and disinfect the cell. Plaintiff was never given additional cleaning supplies. Plaintiff's soap was ...


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