The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 11) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER
On December 7, 2009, Plaintiff Raymond Villa, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court issued an Order severing Plaintiff's claims from the initial lawsuit filed on behalf of Plaintiff and a number of other prisoners. (ECF No. 2.) On October 4, 2010, Plaintiff filed his First Amended Complaint. (ECF No. 11.) That amended complaint 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, 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).
III. SUMMARY OF FIRST AMENDED COMPLAINT
The Complaint alleges P.L. Vasquez, Warden, Wasco State Prison ("Wasco") and J. Ortega, Correctional Counselor/Appeal Coordinator, Wasco violated Plaintiff's Eighth and Fourteenth Amendment rights.
Plaintiff alleges the following: "On or about Nov. 9, 2009, an altercation took place in 'D' Yard - Building 4, between allie [sic] gangs of Bulldogs and Blacks." (Compl. at 1.) As a result of the "altercation", members of the two gangs were subjected to cruel and unusual punishment:"[no]*fn1 physical fitness and exercise yard time, (for a period of 2 1/2 months,) inhumane treatment, (no access to showers for a period of 1 1/2 weeks.) [and] the denial to be able to purchase personal hygiene and grooming products." (Id.)
The Bulldogs and Blacks quickly resolved their differences but the punishments continued. In contrast, when similar situations occurred between Southerners and Whites, their punishments were far less severe. (Id.)
Plaintiff alleges that the aforementioned conduct violated his right to be free from cruel and unusual punishment under the Eighth Amendment and his Fourteenth Amendment right to equal protection under the law. (Id. at 2.)
To state a claim under Section 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United ...