The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED WITH THE FOURTH AMENDED COMPLAINT AGAINST DEFENDANTS TORRES AND RODRIGUEZ FOR RETALIATION, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 36.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Lonnie Williams ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated by civil Complaint filed by Plaintiff on October 27, 2009. (Doc. 1.) On November 16, 2009, Plaintiff filed the First Amended Complaint. (Doc. 5.)
On March 11, 2010, an order was entered, finding Plaintiff ineligible to proceed in forma pauperis. (Doc. 11.) The Court found that Plaintiff had suffered three "strikes" within the meaning of 28 U.S.C. § 1915(g), and could not proceed without the payment of the filing fee, in full. Plaintiff filed objections to the March 11, 2010, order. (Doc. 12.) On April 30, 2010, an order was entered by the District Court, vacating the March 11, 2010 order and reinstating Plaintiff's in forma pauperis status. (Doc. 13.) In the April 30, 2010, order, the Court noted that Plaintiff alleged that Defendants conspired against him by placing poison in his food, which caused him to be very sick, and then denied him emergency medical care. Plaintiff alleged that he was "still being poisoned through foods and deprived emergency or any medical treatments." The Court found that those allegations satisfied the imminent danger exception to section 1915(g). The Court reinstated Plaintiff's in forma pauperis status, and granted his request to file a Second Amended Complaint.
On September 2, 2010, Plaintiff filed the Second Amended Complaint. (Doc. 27.) The Court screened the Second Amended Complaint and entered an order on June 17, 2011, dismissing the Second Amended Complaint for failure to comply with Rules 8 and 18 of the Federal Rules of Civil Procedure, with leave to amend. (Doc. 28.) On August 8, 2011, Plaintiff filed the Third Amended Complaint. (Doc. 31.) On December 9, 2011, the Court dismissed the Third Amended Complaint for failure to state a claim, with leave to amend. (Doc. 32.) On January 19, 2012, Plaintiff filed the Fourth Amended Complaint, which is now before the Court for screening. (Doc. 36.) This action was referred to the undersigned for the limited purpose of screening the Fourth Amended Complaint.
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 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal 129 S.Ct. at 1949. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FOURTH AMENDED COMPLAINT
Plaintiff is presently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue occurred at Corcoran State Prison ("CSP") in Corcoran, California, when Plaintiff was housed there. Plaintiff names as defendants Correctional Officer ("C/O") P. Rodriguez, Sergeant ("Sgt.") H. A. Sumaya, C/O Gary Torres, Dr. Moon, Sgt. K. Vogel, and Magistrate Judge Gary S. Austin. All of the defendants except Magistrate Judge Austin were employed at CSP at the time of the events at issue.
Plaintiff alleges as follows in the Fourth Amended Complaint.
Plaintiff was transferred from North Kern State Prison ("NKSP") to CSP en route to testify at the federal court in Fresno as a witness in a civil rights action filed by inmate John E. James III. Plaintiff was called to testify on September 28, 2009, on behalf of inmate James against defendants in James' action who included Sgt. Beer, Sgt. J. M. Martinez, Sgt. K. Vogel, C/O Gary Torres, C/O H. German, C/O Robles, and C/O Grimsley. Plaintiff had witnessed these officials brutally attack inmate James at CSP.
Defendant C/O Gary Torres was working in R&R on September 21, 2009, the day Plaintiff arrived at CSP. As soon as Plaintiff came into R&R, defendant Torres said to Plaintiff, "Welcome back, faggot! Long time no see!" (Fourth Amended Complaint ("4ACP"), Doc. 36 at 6.) Torres then stated, "You want to testify against me? This time I will try to kill you!" Id. Torres told defendants Sumaya and Vogel to "make sure this faggot gets nothing," and they agreed. Id. The following day, C/O P. Rodriguez told Plaintiff, "Enjoy your stay here, because you don't have shit coming," and "I spoke to Torres, so I know what is going on!" Id.
Plaintiff alleges that he was previously poisoned by CDCR prison officials and had a heavy-metal toxicology blood test performed which detected arsenic, mercury and lead in Plaintiff's blood.*fn1
Plaintiff alleges that he was poisoned every day from September 21, 2009 until he was returned to NKSP. Plaintiff was having the same symptoms of arsenic poisoning, which consisted of violent vomiting, stomach, liver, and kidney pains, bleeding from the rectum, enlarged prostate, bleeding and constant urination, infected and swollen bladder, hemorrhoids, severely dry, flaky scalp and skin, severe itching, constipation, heart and chest pains, breathing problems, decaying teeth, bleeding gums, blurred vision, explosive headaches, body aches and pains, disorientation, and inability to concentrate. Plaintiff believed that he would die.
On October 22, 2009, Plaintiff submitted an emergency medical request form, requesting a visit with the medical doctor for arsenic poisoning and requesting that a heavy-metal toxicology blood and urine analysis be conducted immediately. Plaintiff was scheduled for a routine -- not emergency -- primary care provider visit within fourteen calendar days.
On November 5, 2009, Plaintiff met with Dr. Moon. Officers Rodriguez and Sumaya intervened and told Dr. Moon, "He's lying! No one is poisoning him. He's always making up false shit about the officers. No one's poisoning him!" (4ACP, Doc. 36 at 7:11-14.) When Plaintiff informed Dr. Moon, "The officers cannot intervene in my medical treatment," Dr. Moon said, "You look healthy to me and I am not ordering any heavy-metal tests on you! I'm done!" Id. Plaintiff was forcefully escorted back to his cell without any medical treatment, in severe pain from the poisoning.
When Sgt. K. Vogel approached Plaintiff's cell door, Plaintiff told him, "I am being poisoned and I am very sick! I am throwing up - see the vomit in the toilet?" Id. Sgt. Vogel looked in the toilet and said, "That's not very lady-like, Williams." Id. Plaintiff demanded to see a medical doctor. Sgt. Vogel stated, "What for? I don't see anything wrong with you!" and walked away. Id. When Plaintiff threatened to sue Sgt. Vogel, Vogel said, "Whatever! It won't be the first time you tried." Id. Defendant Vogel deliberately deprived Plaintiff of medical treatment, in retaliation for Plaintiff being ordered to testify against him on behalf of inmate James.
Defendant Torres conspired with defendants Rodriguez, Sumaya, and Vogel; defendant Rodriguez conspired with defendant Sumaya; and defendant Moon and each defendant acted jointly in concert to deprive Plaintiff of medical treatments and to deprive Plaintiff of nutritionally balanced meals.
Plaintiff alleges that Magistrate Judge Gary S. Austin retaliated against him because Plaintiff filed this case, and also because on July 15, 2010, Plaintiff filed objections to Magistrate Judge Austin's findings and recommendations. Plaintiff alleges that Magistrate Judge Gary S. Austin conspired with District Judge Lawrence J. O'Neill to have this action dismissed, and further conspired with the Deputy Clerk of the Court in Fresno to openly discriminate against Plaintiff (who is transsexual and diagnosed with Gender Identity ...