The opinion of the court was delivered by: United States Magistrate Judge Michael J. Seng
ORDER DISMISSING PLAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Clarence Leon Dews ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983.
Plaintiff initiated this action on February 21, 2012. (Compl., ECF No. 1.) No other parties have appeared in the action.
Plaintiff's Complaint is currently before the Court for screening.
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).
42 U.SC. § 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). 42 U.SC. § 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).
Plaintiff is currently incarcerated at North Kern State Prison. The events alleged in his Complaint appeared to have occurred at Wasco State Prison. Plaintiff appears to allege that the following individuals violated his rights under the Eighth and Fourteenth Amendments: 1) County of Kern and 2) City of Wasco.*fn1
Plaintiff alleges as follows:
Plaintiff was placed in Wasco State Prison in 2008. (Compl. at 4.) While there, a fight occurred between two inmates and several rounds of ammunition were fired by a "blond headed female c/o." (Id. at 5.) Even though Plaintiff was not involved in the fight, Plaintiff was shot and injured in his left leg and foot. (Id.) He was taken to the medical clinic but received only basic treatment. (Id.) Two years later Plaintiff was informed that his leg had actually been fractured. (Id.) Plaintiff's doctors lied to him about the extent of his injuries. (Id. at 6.) Plaintiff's rights under the Eighth Amendment have been violated. (Id. at 7.) Plaintiff is disabled and requires a wheelchair. (Id.) He is a "270 prison custody style, but is held in a 180 style custody prison." (Id.) Plaintiff requires proper accommodation under the American with Disabilities Act. (Id.) Due to his housing situation, he suffers from "physical torment" and could be in danger of physical injury. (Id.) Plaintiff is in danger at his current prison because of constant cell fights and riots. (Id. at 7, 9.)
Plaintiff asks the Court to consider an immediate injunction to transfer him to a prison that can accommodate his needs. (Compl. at 7-8.) Plaintiff asks for declaratory relief and a permanent injunction. (Id. at 8.) He also asks for $75,000 in compensatory damages, $75,000 in punitive damages, a jury trial, and costs. (Id. at 10.)
A. 42 U.SC. § 1983 Claims
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.
The only two Defendants identified in Plaintiff's Complaint are the County of Kern and City of Wasco, both of ...