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. 38) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
Plaintiff Nokkuwa K. Ervin ("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 September 14, 2010. On August 10, 2011, an order issued dismissing Plaintiff's complaint, with leave to amend, for failure to state a claim. (ECF No. 22.) On December 12, 2011, Plaintiff's second amended complaint was dismissed, with leave to amend, for failure to state a claim. (ECF No. 30.) Currently before the Court is the third amended complaint, filed May 31, 2012. (ECF No. 38.)
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).
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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, 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). 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, 556 U.S. at 678, 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, 127 S. Ct. 1955).
II. Third Amended Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is incarcerated at Salinas Valley State Prison. Plaintiff brings this action against Defendants CDCR, Harrington, Biter, Arlitz, Miranda, Akanno, Shittu, Lopez, and Adams alleging violations of the Eighth and Fourteenth Amendments and is seeking monetary damages.
On June 25, 2008, Defendant Akanno received diagnostic tests from Kern Radiology Group describing Plaintiff's injuries, disc space narrowing shown at L5-sl, and Defendant Akanno failed to recommend or refer Plaintiff to a neurologist. Plaintiff has had back surgery in the past and a history of debilitating back injuries. (Third Am. Compl. ¶ 15, ECF No. 38.) On September 29, 2008, Defendant Shittu received diagnostic test results from Kern Radiology Group and failed to recommend or refer Plaintiff to a neurologist. (Id. at ¶ 16.)
Plaintiff alleges that on June 8, 2010, while he was housed at Kern Valley State Prison ("KVSP"), someone threw marijuana and pills under his cell doors. The drugs were discovered by correctional officers and his cell was searched. (Id. at ¶¶ 1, 2.) When asked, Plaintiff's cell mate stated that the drugs belonged to him. (Id. at ¶ 3.) Plaintiff and his cell mate were placed in administrative segregation, and on August 5, 2010, Plaintiff received a rule violation report for possession of a controlled substance for distribution. (Id. at ¶¶ 4, 5.) Defendant Miranda found Plaintiff guilty of the rule violation on October 14, 2010. (Id. at ¶ 6.) Plaintiff contends that he was placed in administrative segregation and punished because he was celled with an inmate who possessed a controlled substance, and he does not have a right to refuse to cell with an inmate. (Id. at ¶¶ 7, 8.)
When Plaintiff was placed in administrative segregation all his property was packed, but his orthopedic shoes were not placed with his property. (Id. at ¶ 9.) Plaintiff filed a request for interview regarding his missing shoes, but the shoes were lost. (Id. at ¶ 10.) On June 29, 2010,*fn1 Plaintiff submitted a CDC 1824 and a medical slip because he was in pain when he walked, he wanted a change in medication and requested a chrono for waist restraints because having his hands cuffed behind his back caused him pain. (Id. at ¶ 11.) On July 4, 2010, Plaintiff notified Defendant Lopez that his orthopedic shoes were lost by correctional staff, and she failed to take action to replace the shoes. (Id. at ¶ 17.) On August 3, 2010, Plaintiff received the CD 1824 response stating that his orthopedic shoes could not be found, and a supplemental pair could not be issued because there were no molds for his feet. (Id. at ¶ 12.) On August 16, 2010, Plaintiff received noticed that his accommodation request would be before Defendant Lopez, and he sent her a letter and approximately 20 pages of exhibits. (Id. at ¶ 13.)
Plaintiff contends that Defendants failed to provide proper treatment, replace his orthopedic shoes, or provide adequate treatment for his back injuries while he was housed in administrative segregation. (Id. at ¶ 14.) Plaintiff was suffering from pain and not having his orthopedic shoes made the pain worse. In addition, the mattress caused Plaintiff pain making it difficult to sleep. (Id. at ¶ 18.)
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief.