The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 10)
ORDER THAT DISMISSAL IS SUBJECT / TO 28 U.S.C. § 1915(G)
Plaintiff Gregory McKinney ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 2, 2009. On September 16, 2010, Plaintiff's complaint was dismissed, with leave to amend for failure to state a claim. (ECF No. 9.) Currently pending before the Court is the first amended complaint, filed October 8, 2010. (ECF No. 10.)
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).
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is housed at Kern Valley State Prison. Aside from the fact that the first two pages of the amended complaint are handwritten, Plaintiff's first amended complaint is identical to his original complaint. The factual allegations have been set forth in the order dismissing Plaintiff's complaint with leave to amend, filed September 16, 2010. (ECF No. 9.) This action is brought against Defendants Susan Hubbard, Mike Knowles, N. Dill, G. R. Hudson, and C. Waddle alleging violations of the Sixth, Eighth, and Fourteenth Amendments. Plaintiff is seeking declaratory relief and monetary damages.
The Sixth Amendment provides for the rights of an individual in a criminal prosecution. Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Plaintiff's procedural rights in the disciplinary hearing setting are defined by the Due Process Clause of the Fourteenth Amendment, not by the Sixth Amendment. To the extent Plaintiff is attempting to allege violations during his rule violation hearing, they do not state a cognizable claim under the Sixth Amendment.
To prove a violation of the Eighth Amendment the plaintiff must "objectively show that he was deprived of something 'sufficiently serious,' and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)(citations omitted); see also Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010). Deliberate indifference requires a showing that "prison officials were aware of a "substantial risk of serious harm" to an inmates health or safety and that there was no "reasonable justification for the deprivation, in spite of that risk.". Id.(quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994). The circumstances, nature, and duration of the ...