The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF'S ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM SUBJECT TO 28 U.S.C. § 1915(g) (ECF NO. 29) OBJECTIONS DUE WITHIN THIRTY (30) DAYS
On October 9, 2009, Plaintiff Noel Rodriguez, a state prisoner proceeding pro se and in forma pauperis filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.)
The Court screened and dismissed the Complaint for failure to state a claim (Order Dismiss Compl., ECF No. 21) and the First Amended Complaint on the same ground. (Order Dismiss First Am. Compl., ECF No. 23.)
Plaintiff filed a Second Amended Complaint (Second Am. Compl., ECF No. 24) and prior to screening requested leave of the Court to file a third amended complaint (Mot. Leave File Am. Compl., ECF No. 25) which the Court granted (Order Granting Mot., ECF No. 26.)
Plaintiff filed his Third Amended Complaint (Third Am. Compl., ECF No. 29) 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, 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 COMPLAINT
Defendants, named as Doe Gun Tower Guards and Doe Yard Guards at the Corcoran Substance Abuse Treatment Facility ("CSATF"), failed to protect Plaintiff during a June 1, 2009 attack by two other inmates in the C-Yard by failing to use their weapons to stop the attack, and in the case of Defendant Yard Sergeant Does also by failing to order the use of necessary force to stop the attack, violating Plaintiff's Eighth Amendment rights. (Third Am. Compl. at 4-5.)
Plaintiff was attacked for approximately thirty seconds; prison officials yelled approximately ten times for the attackers to stop; the attackers then stopped the attack, lay down on the ground and were cuffed by prison officials. (Id.)
Plaintiff names as Defendants (1) Gun Tower Guards Does 1-5, (2) Yard Guards Does 6-8, (3) Yard ...