The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (DOC. 9)OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Findings And Recommendations
Plaintiff Ronald F. Martinez ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on February 18, 2011. Doc. 1. On September 20, 2011, the Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a) and § 1915(e)(2)(B)(ii). Doc. 8. Plaintiff stated claims against certain Defendants. Plaintiff was provided the opportunity to either file a first amended complaint or to notify the Court that he wished to proceed only on the claims found to be cognizable. On September 30, 2011, Plaintiff filed his first amended complaint. Doc. 9.
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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of First Amended Complaint
Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California. Plaintiff names as Defendants: Kathleen Allison, acting warden of CSATF; Kent Clark, former warden of CSATF; D. Foston, chief of the inmate appeals branch; D. Artis, appeals examiner in the appeals branch; A. Hernandez, associate warden at SATF; T. Wan, S. Sherman, and R. Diaz, chief deputy wardens at CSATF; F. Vasquez, C facility captain at CSATF; R. Tolsen and B. Peterson, captains at CSATF; D. Goss, C. Moreno, and O. Ybarra, lieutenants; M. Bejarano and C. Garza, sergeants at CSATF; R. Gomez, appeals coordinator at CSATF; Matthew Cate, secretary of CDCR; Scott Kernan, undersecretary of CDCR; and Teri McDonald, chief deputy secretary for adult operations of CDCR.
Plaintiff alleges the following. Plaintiff requests declaratory relief, compensatory and punitive damages, appointment of counsel, every Defendant found to have violated Plaintiff's rights to be fired, and costs of suit.
A. Eighth Amendment - Conditions of Confinement
On June 21, 2009, C facility was placed on lockdown because of a riot between southern and northern Hispanics. First Am. Compl. ¶ 5. Plaintiff is classified as southern Hispanic because he is Mexican and living in Los Angeles at the time of his conviction. Id. On June 26, 2009, Defendant F. Vasquez prepared a program status report ("PSR"), placing the entire C facility on modified program pending completion of facility search and inmate interviews. Id. ¶ 6. On or about June 26,2009, this PSR was approved by Defendants Allison and Clark. Id. ¶ 7. Southern and northern Hispanics allegedly involved in the riot were placed in administrative segregation unit ("ASU"), and seven to ten days later, Defendants Clark and Allison permitted the segregated southern and northern Hispanic inmates to receive 10 hours a week of exercise. Id. ¶ 8.
Modified program entailed unclothed body search prior to exiting the cell and a metal detector wand. Id. ¶ 9. All escorts are in restraints, handcuffs, and/or waist chains, and no visits, canteen, packages, work/education assignments, out-of-cell religious services, no access to the law library (except for "verified" court filing deadlines), three five-minute showers a week, and no out-of-cell exercise and sunshine caused by Defendants' refusal to utilize the concrete yards. Id. After one week, inmates placed in ASU were allowed more than 10 hours a week of outdoor exercise, while southern and northern Hispanic inmates who remained in C facility, including Plaintiff, were deprived of out-of-cell exercise and sunshine because of the modified programs. Id. ¶ 10.
From June 26, 2009 to October 13, 2010, when Plaintiff was transferred, Defendants Vasquez, T. Wan, C. Moreno, R. Tolsen, B. Peterson, and Does 1 through 5 prepared PSRs denying Plaintiff and southern and northern Hispanics access to the concrete yards. Id. ¶ 11. Defendants Clark, Allison, Wan, R. Diaz, S. Sherman, and Does 6 through 10 approved these PSRs. Id. As a result of these PSRs, Defendants deprived Plaintiff of out-of-cell exercise ...