The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING THIRD AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND(Doc. 31.) THIRTY-DAY DEADLINE TO FILE FOURTH AMENDED COMPLAINT NOT TO EXCEED TWENTY-FIVE PAGES
I. RELEVANT PROCEDURAL HISTORY
Lonnie Williams ("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. This action was initiated by civil complaint filed by Plaintiff on October 27, 2009. On November 16, 2009, Plaintiff filed the First Amended Complaint.
On March 11, 2010, an order was entered, finding Plaintiff ineligible to proceed in forma pauperis. The Court found that Plaintiff had suffered three "strikes" within the meaning of 28 U.S.C. § 1915(g), and could not proceed without the payment of the filing fee, in full. Plaintiff filed objections to the March 11, 2010, order. On April 30, 2010, an order was entered by the District Court, vacating the March 11, 2010, order, and reinstating Plaintiff's in forma pauperis status. In the April 30, 2010, order, the Court noted that Plaintiff alleged that Defendants conspired against her*fn1 by placing poison in her food, which caused her to be very sick, and then denied her emergency medical care. Plaintiff alleged that she was "still being poisoned through foods and deprived emergency or any medical treatments." The Court found that those allegations satisfied the imminent danger exception to section 1915(g). The Court reinstated Plaintiff's in forma pauperis status, and granted her request to file a Second Amended Complaint.
On September 2, 2010, Plaintiff filed the Second Amended Complaint. The Court screened the Second Amended Complaint and entered an order on June 17, 2011, dismissing the Second Amended Complaint for failure to comply with Rules 8 and 18 of the Federal Rules of Civil Procedure, with leave to amend. On August 8, 2011, Plaintiff filed the Third Amended Complaint, which is now before the Court for screening.
II. SCREENING REQUIREMENT
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 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).
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). 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. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF THIRD AMENDED COMPLAINT
Plaintiff is presently incarcerated at the R. J. Donovan Correctional Facility ("RJD") in San Diego, California. The events at issue occurred at Corcoran State Prison ("CSP") in Corcoran, California, when Plaintiff was housed there. Plaintiff names as defendants Correctional Officer ("C/O") P. Rodriguez, Sergeant ("Sgt.") H. A. Sumaya, C/O Gary Torres, Dr. Moon, Sgt. K. Vogel, Lieutenant ("Lt.") G. Tracey, C/O F. Camacho, Sgt. Solis, C/O H. Rocha, G. Ekizian, Sgt. Beer, Sgt. J. M. Martinez, C/O Robles, C/O Grimsley, C/O H. German, A. Rivas, C/O M. Gonzalez, C/O J. Clark, E. Alanis, G. Hackworth, C. Sanchez, and Sgt. Peters. All of the defendants were employed at CSP at the time of the events at issue.
Plaintiff alleges as follows in the Third Amended Complaint.
Plaintiff was transferred from North Kern State Prison to CSP en route to testify in federal court in Fresno as a witness in a civil rights action filed by inmate John E. James III. Plaintiff was called to testify on September 28, 2009, on behalf of inmate James against defendants in James' action which included Sgt. Beer, Sgt. J. M. Martinez, Sgt. K. Vogel, C/O Gary Torres, C/O H. German, C/O Robles, and C/O Grimsley. Plaintiff had witnessed these officials brutally attack inmate James at CSP.
Upon her arrival at CSP, Plaintiff was placed in segregated housing with defendants C/O Rodriguez, Sgt. H. A. Sumaya, G. Ekizian, and C/O F. Camacho, who conspired with each other and with defendants C/O Gary Torres, Sgt. K. Vogel, Sgt. Beer, Sgt. J. M. Martinez, C/O Robles, C/O Grimsley, and C/O H. German to attempt to murder Plaintiff in retaliation for Plaintiff testifying as a witness against them. Plaintiff was served and consumed foods that the defendants knew contained poison, and Plaintiff became severely ill. Plaintiff violently vomited and suffered severe stomach, liver, and kidney pain, and bleeding from the rectum. Plaintiff suffered from itchy, flaky scalp and skin, constipation, inflamed and swollen prostate gland, swollen and infected bladder, hemorrhoids, heart pain, breathing problems, decaying teeth, bleeding gums, blurred vision, headache, other aches and pains, and disorientation. Plaintiff was poisoned every day from September 21, 2009 until she was returned to NKSP. Plaintiff believed that she would die.
Defendant C/O Gary Torres was working in R&R on the day Plaintiff arrived at CSP. As soon as Plaintiff came into R&R, defendant Torres said to Plaintiff, "Welcome back, faggot! Long time no see!" (3ACP, Doc. 31 at 9.)*fn2 Torres then stated, "You want to testify against me? This time I will try to kill you!" Id. Torres told the officers to "make sure this faggot gets nothing," and the officers agreed. Id. C/O P. Rodriguez told Plaintiff, "Enjoy your stay here, because you don't have shit coming," and "I spoke to Torres, so I know what is going on!" Id.
When Plaintiff attempted to obtain medical treatment for arsenic poisoning, C/O P. Rodriguez told Dr. Moon, "He's lying! No one is poisoning him." Id. Sgt. H. A. Sumaya told Dr. Moon, "He's always making up false shit about the officers. No one's poisoning him!" Id. at 10. When Plaintiff informed Dr. Moon that "The officers cannot intervene in my medical treatment," Dr. Moon said, "You look healthy to me and I am not ordering any heavy-metal tests on you! I'm done!" Id. Plaintiff was forcefully escorted back to her cell without any medical treatment, in pain from the poisoning.
When Sgt. K. Vogel approached Plaintiff's cell door, Plaintiff told him, "I am being poisoned and I am very sick! I am throwing up - see the vomit in the toilet?" Id. Sgt. Vogel looked in the toilet and said, "That's not very lady-like, Williams." Id. Plaintiff demanded to see a medical doctor. Sgt. Vogel stated, "What for? I don't see anything wrong with you!" and walked away. Id. When Plaintiff threatened to sue Sgt. Vogel, Vogel said, "Whatever! It won't be the first time you tried." Id.
Plaintiff asked C/O H. Rocha for medical help, and Rocha stated, "No! Go sit down!" Id. Plaintiff asked defendants A. Rivas, C/O M. Gonzalez, C/O Clark, E. Alanis, G. Hackworth, C. Sanchez, Sgt. Solis, Sgt. H. A. Sumaya, Sgt. Peters, Lt. G. Tracey, and C/O F. Camacho for medical help, and each stated, "No!" Id.
Defendants did not comply with the Administrative Procedure Act or the federal court's order issued on March 30, 2006 in Plata v. Schwarzenegger; case number 01-1351-TEH.
On September 22, 2009, Plaintiff attempted to file a prison grievance addressing the allegations in the Third Amended Complaint, but C/O P. Rodriguez intercepted the grievance and tore it up in Plaintiff's presence, stating, "You just won't learn, will you!"
Plaintiff alleges she suffered physical harm and mental distress. Plaintiff requests monetary damages, declaratory and injunctive relief, and attorney's fees and costs.
The Civil Rights Act under which this action was ...