The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 28) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Michael Lynn Waters ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on October 14, 2010. On February 14, 2012, an order issued dismissing the complaint, with leave to amend, for failure to state a claim. (ECF No. 27.) Currently before the Court is the first amended complaint, filed March 14, 2012. (ECF No. 28.)
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 ("CDCR") and is incarcerated at California State Prison ("CSP"), Sacramento. Plaintiff alleges that while he was housed at Pelican Bay State Prison, prison officials mistakenly placed Plaintiff in their "BMU" program for refusing to double cell. Plaintiff was then sent to Corcoran State Prison ("Corcoran"), where the same mistake was made. (First Amend. Compl. 5,*fn1 ECF No. 28.)
On September 18, 2008, Defendant Scaife was ordered by Defendant Whitford to investigate Plaintiff's mental health concerns to determine whether Plaintiff needed to be single celled. Defendants Scaife and Flores stated in the report that they reviewed Plaintiff's central file and mental health file. (Id. at 3.) Defendant Whitford ordered the investigation because he was told about this civil action. Plaintiff claims that he reviewed the report and it is false. Plaintiff states that Defendant Scaife never completed the investigation to remove this false report, and Plaintiff is being punished for refusing to double cell. (Id. at 4.)
Defendant Rosenquest, Plaintiff's prison counselor, told Plaintiff that she spoke with Defendants Whiford, Scaife, and Flores who told her they knew Plaintiff was being illegally double celled and fighting with other inmates due to his obsessive compulsive disorder. Defendant Rosenquest failed to protect Plaintiff from being double celled. (Id. at 5.) Plaintiff states that at CSP-Sacramento he is required to ride a golf cart with other inmates "and fighting by spitting, kicking, headbutting, coming out of their handcuffs." (Id. at 4.)
For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff has been given the opportunity to file an amended complaint with direction of the Court to cure the deficiencies in his complaint. Plaintiff has now filed two complaints without alleging facts against any of the defendants sufficient to state a claim under § 1983. The Court finds that the deficiencies are not capable of being cured by amendment, and therefore further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
Liability under section 1983 exists where a defendant "acting under the color of law" has deprived the plaintiff "of a right secured by the Constitution or laws of the United States." Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). "The Constitution does not mandate comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981), and requiring an inmate to double cell does not by itself rise to the level of an Eighth Amendment violation, Rhodes, 452 U.S. at 345-352, 101 S. Ct. at 2398-2402. The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to ...