The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 4) THIRTY-DAY DEADLINE
Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the first amended complaint, filed September 22, 2010. (ECF No. 4.)
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, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (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 in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at California State Prison-Corcoran. This action is brought against Defendants Vogel, Mason, Hernandez, Pena, Callow, Rousseau, and Field alleging deliberate indifference in violation of the Eighth Amendment and retaliation in violation of the First Amendment. Plaintiff is seeking declaratory and monetary relief.
On October 12, 2009, Plaintiff was interviewed by Defendants Vogel and Marsh regarding a staff complaint. Later that day when he returned to his cell, he noticed that when the prisoner in the cell above him flushed the toilet sewer water would run down a vent onto the spout of his sink. Plaintiff informed Defendant Vogel that he had an emergency plumbing need and wanted him to call a plumber or move him to another cell. Defendant Vogel told Plaintiff he was aware of the situation and wasn't going to submit a work order or move Plaintiff. Later that evening Plaintiff informed Correctional Officers Kee, Tomlin, Tran, and Morrison about the problem and was informed that they would tell the sergeant. Plaintiff submitted an appeal because he was informed that he was not going to be moved to another cell and a plumber was not going to be called.
Plaintiff complained about the situation on October 13, 2009 and was told that the facility lieutenant and captain were aware of the situation and were working on it. Plaintiff was informed that Defendant Hernandez had called in a plumber, but was not going to move Plaintiff. Plaintiff was unable to use the sink to drink water, brush his teeth, or wash until it was fixed on October 15, 2009.
Plaintiff alleges that Defendants Vogel, Mason, Hernandez, Callow, Rousseau, and Field subjected him to a substantial risk of harm in retaliation for his filing inmate grievances and lawsuits. Plaintiff states that as a result he suffered dehydration, a fungal rash on his back, mental and emotional pain and fear of contracting Hepatitis.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order.