The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS OBJECTIONS DUE WITHIN THIRTY DAYS (ECF No. 50)
Plaintiff Michael Eugene Hollis ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors.*fn1 Currently pending before the Court is the third amended complaint, filed September 26, 2011. (ECF No. 50.)
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 incarcerated at the Federal Correctional Institution in Big Spring, Texas. Plaintiff's third amended complaint alleges that while he was housed at the Fresno County Jail from August 18, 2008 until June 16, 2009, he was denied access to the law library or any system of receiving legal materials. (Third Amended Compl. 6, ECF No. 50.) Plaintiff alleges that he wrote to Defendant York and filed complaints that were ignored by Defendant Mims. (Id. at 6.)
Plaintiff was told that he would be moved to Madera County Jail, but Defendant York failed to have Plaintiff transferred to Madera County Jail. (Id. at 9-10.) Plaintiff alleges that had he had access to legal materials, Judge Wanger would have granted all if not some of his motions for injunctive relief. (Id. at 10.) Plaintiff brings this action against Defendants Mims and York for obstructing Plaintiff from pursing his civil rights complaints against jail conditions. (Id. at 11.)
Plaintiff was harmed by being denied research into injunctive relief while housed at Fresno County Jail. (Id. at 11-12.)
Additionally, Plaintiff alleges that he was subjected to pain and misery due to cold temperatures in the "40's and 50's" while housed at the Fresno County Jail. (Id. at 12.) Plaintiff alleges that he was kept in a cold holding cell at the Fresno County Jail because of an unwritten policy since it makes inmates easier to mange. (Id. at 12-13.) Plaintiff alleges that Defendants Mims and York were aware of the jail temperatures through letters, grievances, face to face talks,*fn2 attorney interventions, and sit down talks with both York and Mims representatives. (Id. at 12.)
On October 13, 2008, Plaintiff asked his defense attorney to talk to the United States Marshall Service about the cold, medical care, and library denials. On October 27, 2008, Plaintiff complained about the cold, medical care, forced housing with gang members, and denial of library access. Plaintiff also learned that federal prisoners were housed in Madera.*fn3 (Id. at 13.) Plaintiff was exposed to cold temperatures from October 2008 through March 2009 causing him to suffer from post surgical osteo-arthritis and foot numbness. Plaintiff complained to medical personnel about the cold. (Id. at 14.)
Plaintiff filed two grievances regarding the jail temperature in November 2008 and Defendant Mims and an unidentified individual sent Defendant Dawson and Calvert to "falsify a temperature reading by 'shooting' a lazer temperature reading at a sky light on the sunny side of the building." (Id. at 15.) Plaintiff asked Defendant Dawson to take a reading in Plaintiff's cell and Defendant Dawson refused. On December 12, 2008, Plaintiff's grievance was denied by an unidentified jail commander ("Defendant Doe"). Nothing was done to address Plaintiff's suffering. (Id.)
Plaintiff was placed in "the hole" and subjected to even colder temperatures which caused him to catch a cold. Plaintiff was given cold medication for two and one half days when his symptoms of a runny nose, sneezing, sore throat and coughing up phlegm lasted over three weeks. He suffered from severe pain due to the cold and was not given pain medication while in the hole. (Id. at 17.)
On October 27, 2008, Plaintiff was told that the United States Marshall Service was planning to move him to another facility in Madera. Plaintiff spoke with a United States Marshall on December 1, 2008, and was led to believe the move would occur soon. Plaintiff filed a motion for a change of venue, which was denied by Judge Wanger. Plaintiff ended up taking a psychiatric medication until he was transferred from Fresno County Jail in June 2009. (Id. at 18.)
Plaintiff brings this action against Defendants Holder, Mims, York, Dawson, Calvert, and Doe, in their individual and official capacities, alleging denial of access to the court in violation of the First Amendment and cruel and unusual conditions of confinement in violation of the Eighth and Fourteenth ...