The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
SCREENING ORDER ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND CLAIM DEPRIVATION OF OUTDOOR EXERCISE (Doc. 39.)
ORDER DISMISSING ALL REMAINING CLAIMS FOR FAILURE TO STATE A CLAIM, WITHOUT LEAVE TO AMEND THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT AS INSTRUCTED BY THIS ORDER
I. RELEVANT PROCEDURAL HISTORY
Bernard C. Hughes ("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. On January 13, 2010, Plaintiff consented to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance. (Doc. 4.) 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).
Plaintiff filed the Complaint commencing this action on December 29, 2009. (Doc. 1.) On February 17, 2010, Plaintiff filed the First Amended Complaint. (Doc. 25.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. 1915A and entered an order on October 22, 2010, dismissing the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 29.) On January 21, 2011, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 39.)
II. SCREENING REQUIREMENT
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint for sufficiency to state a claim. "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 . . . is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
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).
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is presently incarcerated at the Deuel Vocational Institution in Tracy, California. The events at issue occurred at the Mariposa County Jail in Mariposa, California, when Plaintiff was detained there as a pretrial detainee. Plaintiff names as defendants Susan Brent (Jail Commander) and Ron Beverage (Jailer).
Plaintiff alleges as follows in the Second Amended Complaint. On January 30, 2009, defendant Beverage started his shift by conducting a count. Defendant Beverage confiscated an allowed periodical from Plaintiff, which Plaintiff had received by mail. Plaintiff did not know defendant Beverage had confiscated his periodical until five hours later. Plaintiff activated the intercom system and asked for the periodical to be returned to him. Officer Beverage said, "No." During another count, Plaintiff asked defendant Beverage why his property was taken, and defendant Beverage replied, "It is contraband," and closed the section door.
Plaintiff had an emotional outburst and threw a small plastic garbage can at the closing door of his jail unit. Defendant Beverage falsified a report, stating that Plaintiff attempted to assault him with the garbage can. Plaintiff was found guilty of attempted assault at a disciplinary hearing. Subsequently, an isolation period was assessed, and a classification review was conducted. Plaintiff was not allowed to attend or receive documentation of the classification review, or to attend the subsequent ninety-day review, as Plaintiff requested of defendant Brent.
Defendant Brent authorized Plaintiff's disciplinary isolation for forty-five consecutive days, without a review by the Facility Manager or health care staff, or documentation of a review, as required by Title 15 Procedures Re Minimum Guidelines for Jail Detention Facilities. During the forty-five day isolation period, Plaintiff was not allowed any outdoor recreational activity.
Plaintiff brings claims under the First Amendment, the Due Process Clause, and for cruel and unusual punishment. Plaintiff requests monetary damages, injunctive relief, and attorney fees.
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). "To the extent that the violation of a state law ...