The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT, FOR FAILURE TO STATE A CLAIM (Doc. 16.) ORDER GRANTING LEAVE TO AMEND THIRTY-DAY DEADLINE TO FILE SECOND IMPLEMENTATION CLAIMS ORDER DISMISSING ALL OTHER CLAIMS ONLY THE RETALIATION AND POLICY AMENDED COMPLAINT AS INSTRUCTED BY THIS ORDER
I. RELEVANT PROCEDURAL HISTORY
John W. Williams ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 16, 2009. (Doc. 1.) On October 29, 2009, Plaintiff consented to the jurisdiction of a Magistrate Judge, and no other parties have appeared. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The Court screened the Complaint pursuant to 28 U.S.C. 1915A and entered an order on November 22, 2010, requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed on the claims found cognizable by the Court. (Doc. 13.) On January 11, 2011, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 16.)
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 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Salinas Valley State Prison ("SVSP") in Soledad, California. The events at issue occurred at Kern Valley State Prison ("KVSP") in Delano, California, while Plaintiff was incarcerated there. Plaintiff names as defendants K. Harrington, Warden at KVSP; J. Castro, Associate Warden; M. Biter, Chief Deputy Warden; and T. Billings, Correctional Counselor II ("Defendants").
Plaintiff alleges as follows in the First Amended Complaint.
Contaminated Drinking Water In April 2005, the California Department of Health Services issued a permit to the CDCR to operate two water wells at KVSP, the sole supply of drinking water to inmates at KVSP, including Plaintiff. The permit requires compliance with all statutory and regulatory drinking water requirements. On April 10, 2008, KVSP was notified by the Department of Public Health that the water wells at KVSP contained more than the allowed maximum level of arsenic, and on December 12, 2008, KVSP was issued a compliance order for violation. (Exhs. A and B to First Amended Complaint ("ACP"), Doc. 16 at 41-48.)
Upon his arrival at KVSP on August 12, 2009, after drinking from KVSP's contaminated water wells, Plaintiff immediately "suffered retch, nausea, stomach cramps, pain, and headache." (ACP, Doc. 16 at 5:8-9.) Plaintiff attributes his illness to elevated levels of arsenic in the water. Between August 12, 2009 and August 27, 2010, Plaintiff was forced to drink contaminated water and consume low levels of arsenic, causing illness and loss of energy. Plaintiff holds defendants Harrington, Biter and Castro liable for harm to Plaintiff, based on their refusal to comply with the Safe Drinking Water Act.
On August 21, 2009, Plaintiff submitted an emergency inmate grievance related to the contaminated drinking water, directly to Warden Harrington. Warden Harrington forwarded the grievance to defendant Billings for processing. Defendant Billings returned the grievance to Plaintiff with an attached notice stating, "Lift on water restriction at Kern Valley State Prison," signed by defendant Billings on August 24, 2009. (ACP, Doc. 16 at 6 ¶10.) Plaintiff alleges that defendant Billings' actions deliberately defied CDCR policy to frustrate Plaintiff's appeal efforts. On September 9, 2009, Plaintiff returned the grievance to defendant Billings, through Warden Harrington. Defendant Billings retaliated against Plaintiff by conspiring to deprive him of his rights to appeal, by making a request to Administrator N. Grannis to place Plaintiff on an extended appeal restriction, restricting Plaintiff to one grievance a month for six months. Defendant Billings falsified information to restrict Plaintiff's appeals concerning the drinking water, in conspiracy with defendants Harrington, Biter and Castro, in an attempt to conceal the fact that the water was contaminated.
After Plaintiff was placed on appeal restriction status, defendant Billings rejected Plaintiff's emergency grievance a second time on or about September 24, 2009, directing Plaintiff to obtain an Informal Level response, despite knowing that the issue could not be resolved in that manner. When defendant Castro received the grievance, he forwarded it back to defendant Billings who on October 5, 2009 returned the grievance to Plaintiff with notice that the grievance could not be processed due to Plaintiff's appeal restriction. Plaintiff maintains that the Defendants acted to prevent his exhaustion of remedies and deny Plaintiff access to the courts.
Defendants Harrington, Biter and Castro promulgated and implemented a policy which authorized defendant Billings to deliberately block KVSP inmates, including Plaintiff, from challenging deficient policies. Also, between January and April 2010, defendants Harrington, Biter and Castro ratified a policy which extended preferential treatment to Hispanic inmates at KVSP with respect to job assignments.
In October 2009, Plaintiff was given a prison job assignment as food handler. On or about March 19, 2010, Plaintiff was admitted into crisis care due to a suicide attempt, and upon discharge from crisis care, Plaintiff learned that his job position had been taken. Plaintiff wrote to defendant Harrington concerning the loss of his job assignment. On or about March 30, 2010, Plaintiff was interviewed by defendant Castro's wife, Lieutenant ("Lt.") Castro. Lt. Castro informed Plaintiff that the policy which took away Plaintiff's job assignment was being imposed to afford Hispanic inmates from Northern California access to job assignments because of prison gang disruptive activity involving Southern Hispanic California inmates. Lt. Castro also told Plaintiff that he was also rehoused and unassigned "because they don't want people who cut their wrists working in the kitchen." (ACP, Doc. 16 at 10 ¶20.) Plaintiff asserts that CDCR policy requires notice and a classification hearing before an inmate is unassigned from a prison job, yet he was not given this due process, violating his rights to equal protection because of his race and mental disability.
On May 1, 2010, Plaintiff filed a grievance concerning this dispute, and defendant Billings rejected it as untimely. Plaintiff returned the grievance explaining that any violation of time restraints was the result of the six-month appeal restriction imposed on Plaintiff by defendant Billings. The grievance was never processed, responded to, or returned to Plaintiff.
Defendants Harrington, Biter and Castro promulgated and implemented a policy which authorized defendant Billings to retaliate against KVSP inmates, including Plaintiff, by blocking and rejecting inmate grievances based on bogus and arbitrary reasons contrary to CDCR policy, and by placing inmates on appeal restriction to prevent exhaustion of remedies. In August 2009, when Plaintiff participated in a class-action grievance, represented by inmate D. Boult, against defendant Billings. Defendants Harrington and Biter intentionally frustrated the grievance process until inmate
D. Boult was paroled, and then refused to process the class action grievance altogether, so that defendant Billings could continue to use deficient policies. Defendant Billings learned that Plaintiff had authored the class action grievance, which motivated defendant Billings' retaliatory acts against Plaintiff.
On March 13, 2010, Plaintiff filed a grievance concerning defendant Billing's retaliatory schemes. To ensure that the deficient policies were not disturbed, defendants Harrington and Biter permitted the union representative [for the California Peace Officer Association] to conduct a counterfeit inquiry, finding no wrongdoing by defendant Billings.
Plaintiff requests injunctive, declaratory, and monetary relief.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
In the Court's first screening order entered on November 22, 2010, the Court found that Plaintiff had alleged facts, liberally construed, stating cognizable claims in the original Complaint against defendants Harrington and Castro for implementation of policy, and defendant Billings for retaliation. (Doc. 13.) The Court found that Plaintiff had not stated any other cognizable claims in the original Complaint. Id.
Now, the Court has thoroughly reviewed the First Amended Complaint and finds that Plaintiff fails to state any cognizable claims in the First Amended Complaint. Upon review, the Court The Court shall separately address each of Plaintiff's claims. With regard to Plaintiff's claims for retaliation and unconstitutional policy implementation, the Court used the screening procedure as directed by the Ninth Circuit in Iqbal. In light of the fact that the Court used a more restrictive standard of review when screening these two claims, Plaintiff shall be granted leave to amend these claims, as discussed below.
Plaintiff brings this action against Defendants in their official and individual capacities. Plaintiff may not bring suit for damages against Defendants in their official capacities. "The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials in their official capacities." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003).
"Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d 1047, 1060 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).
Accordingly, Plaintiff fails state a claim for damages against any of the Defendants in their official capacities, and ...