The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT AND GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT (Doc. 22)RESPONSE DUE WITHIN THIRTY (30) DAYS
On October 9, 2009, Plaintiff Noel Rodriguez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1, Compl.) The Complaint was dismissed on July 12, 2011 for failure to state a cognizable claim. (Doc. 21, O Screen.) Plaintiff was granted leave to amend and filed the First Amended Complaint on August 1, 2011 (Doc. 22, 1st AC) which is before the Court for screening.
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).
C. Plaintiff's Allegations*fn1
Plaintiff is currently housed at Ironwood State Prison ("ISP"), but complains of events that occurred in Corcoran, California, both at Corcoran State Prison ("CSP") and California Substance Abuse Treatment Facility and State Prison ("SATF"). Plaintiff names Defendants from each facility, to wit: CSP SHU Committee Counselor Isaac; SATF Warden Ken Clark; SATF Gun-Tower Guards John Does 1-5; SATF Yard Prison Guards John Does 6-8; SATF Yard Prison Sergeants John Does 9 and 10; SATF Yard Captain John Doe 11; SATF Yard Lieutenant John Doe 12; SATF Appeals Coordinator, John Doe 13; and SATF Counselors Henne and Hanson.*fn2 Plaintiff seeks injunctive and punitive monetary relief.
Plaintiff alleges that he was transferred to the Security Housing Unit ("SHU") at CSP in March of 2008. (Doc. 22, 1st AC, p. 10.) On March 13, 2008, Plaintiff was evaluated for yard placement and, due to a history of violent behavior and negative interactions with the "South Siders" prison gang ("South Siders"), was offered protective custody yard. (Id., at pp. 10-11.) Upon refusal, Plaintiff was placed in solitary confinement. (Id.) Five months later, in August of 2008, Plaintiff's release to the yard was again considered and Plaintiff was advised that protective custody yard would be safest for him since South Siders wanted to kill him. (Id.) Plaintiff again declined protective custody yard and was kept in solitary confinement due to his violent history and concomitant safety concerns. (Id.)
On August 6, 2008, Defendant Isaac met with Plaintiff and advised that she was considering releasing him to the yard, but that it would be better for him to program in a protective custody yard since South Siders wanted to kill him. (Id.) Plaintiff again refused protective custody yard and when Defendant Isaac insisted, Plaintiff inquired whether he might be placed in a yard separate from South Siders which Defendant Isaac indicated was "not possible." (Id.) The following day, Defendant Isaac and committee members released Plaintiff to general population on a finding that security concerns no longer existed between Plaintiff and South Siders. (Id.) Plaintiff alleges that these actions by Defendant Isaac violated his rights under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. (Id., at pp. 11-12.)
In November of 2008, Plaintiff was transferred and arrived at SATF "S/P General Population." (Id., at p. 14.) On December 16, 2008, Plaintiff was cleared for general population. (Id.)
On June 1, 2009, two South Siders attacked Plaintiff. (Id.) Plaintiff alleges that it took five months from his placement at SATF for South Siders to attack him due to the Mexican Mafia hierarchy, the time it takes for a hit to be ordered and received via general mail, and the fact that yard access at SATF was restricted for weeks on end due to repeated acts of violence. (Id., at pp. 14-15.) It took more than five months for South Siders to receive their order to attack Plaintiff and gain yard access to carry it out.
On the day Plaintiff was attacked, Does 6-9 were responsible for securing the yard and declared it secure (i.e. devoid of weapons and/or contraband prior to release of inmates). (Id., at p. 16.) Plaintiff and his attackers entered the yard at approximately 10:00 a.m. after submitting to a strip search and passing through a metal detector. (Id., at pp. 16-17.)
Around noon, Plaintiff was attacked by two South Siders. (Id., at pp. 14, 17.) During the 30 second attack, Plaintiff was stabbed twelve times throughout his chest, arms, and head. (Id., at p. 17.) Does 6-9 sat and watched the attack take place and did nothing to stop it, waited until the attackers ceased, and then handcuffed all three inmates. (Id.) Plaintiff alleges these actions by Does 6-9 amounted to deliberate indifference in violation of the Eighth Amendment. (Id.) Likewise, though he heard the instruction to "get down" yelled approximately ten times, Plaintiff alleges that Does 1-5 were deliberately indifferent in violation of the Eighth Amendment when they failed to fire any shots to stop the attack. (Id., at p. 18.) Plaintiff further alleges that Does 9 and 10 violated the Eighth Amendment when they failed to order Does 1-8 to stop the attack. (Id., at p. 19.) Plaintiff alleges that Does 11 and 12 failed to provide effective training prior to the June 1st attack. (Id.)
On June 10, 2008, Plaintiff filed a complaint and served it on both Defendants Isaac and Clark, but did not receive a response from either of them. (Id., at p. 20.) Plaintiff alleges that Doe 13 failed to process his complaints to Defendants Isaac and Clark, thus violating his right of access to the court under the First Amendment. (Id., at p. 21.)
In June of 2009, Plaintiff alleges that his property was misplaced or lost such that he was unable to present evidence challenging his underlying criminal conviction. (Id., at p. 21.) Plaintiff also alleges that he requested a review of his central and medical files which was not responded to. (Id., at p. 22.) Plaintiff alleges that Defendants Correctional Counselors Henne and Hanson refused to exhaust/respond to his complaints such that his rights under the Equal Protection clause of the Fourteenth Amendment were violated.
Plaintiff may be able to amend to correct the deficiencies in his pleading so as to state some cognizable claims. Thus, he is being given leave to file a second amended complaint based on the applicable standards and rules discussed herein.
1. Federal Rule of Civil Procedure 8(a)
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to 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. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). "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) (emphasis added).
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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) quoting 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.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusion are not. Iqbal. at 1949; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 556-557. "[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).
If he chooses to file a second amended complaint, Plaintiff should endeavor to make it as concise as possible. He should merely state which of his constitutional rights he feels were violated by a given Defendant and the factual basis.
The Civil Rights Act under which this action was ...