The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
SECOND SCREENING ORDER DISMISSING CLAIM AGAINST DEFENDANT CATE AND EQUITABLE RELIEF CLAIMS, AND FINDING AMENDED COMPLAINT STATES COGNIZABLE EIGHTH AND FIRST AMENDMENT CLAIMS FOR DAMAGES (Doc. 11)
I. Screening Requirement and Standard
Plaintiff Dana McMaster, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 6, 2010. On August 25, 2011, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. On October 18, 2011, Plaintiff filed an amended complaint.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally 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, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
A. Summary of Allegations
Plaintiff, who is incarcerated at Pleasant Valley State Prison in Coalinga, brings this action against California Department of Corrections and Rehabilitation (CDCR) Secretary Matthew L. Cate; Sergeant D. Carlson; and Correctional Officers Garcia, S. Sedwick, and John Does 1 and 2. Plaintiff seeks damages, a declaratory judgment, and injunctive relief based on the alleged violation of his rights under the First and Eighth Amendments of the United States Constitution.
Plaintiff alleges that on March 7, 2009, he was approached by an inmate named Dan, who was a shot caller for the skins. Dan said that Officer Rocha had given him some information about Plaintiff and if it was true, Plaintiff was a dead man. Approximately fifteen minutes later, Plaintiff informed Officer Vang that he had been threatened, he feared for his life, and he wanted off the yard.
Plaintiff was taken to the program office and placed in a holding cell. Present at the time were Sergeant Mendez, Lieutenant Ladd, Defendant Garcia, and Officer Smyth. Sgt. Mendez asked what happened and Plaintiff told them, stating that he could not stay on the yard because the skins would kill him and he wanted to be placed on protective custody (PC) status and housed on a sensitive needs yard (SNY). Plaintiff was told okay and staff left.
Defendant Garcia later returned and told Plaintiff that administrative segregation (ad-seg) was full, so they were going to assign Plaintiff a cell on the yard until an ad-seg cell became available. Plaintiff expressed concern that inmate Dan was a shot caller for the skins and had homeboys. Defendant Garcia told Plaintiff not to worry because they log every cell assignment in the program office log book and everyone would know about Plaintiff's lock-up, a copy of the order would be sent to the building officer so they would know that Plaintiff was on controlled feed, and a sign would be placed on the cell door.*fn1 Defendant Garcia left and then returned a few minutes later to tell Plaintiff she was assigning him to cell 143 in building 3, but he would have to give up his lower bunk chrono and sleep on an upper bunk. Plaintiff responded that he could not get up and down from a top bunk because he has a bad ankle and walks with a cane. Defendant Garcia was clearly upset and she walked away.
Thirty minutes later, Officer Smyth came to get Plaintiff and walked him to 5 block. Officer Smyth asked Plaintiff if he was going to the SNY and Plaintiff responded that he did not really have a choice. Plaintiff expressed concern over being in building 5 because inmate Dan had homeboys in building 5. Officer Smyth showed Plaintiff the paperwork and said not to worry because the paperwork would inform the building officers what to do. Officer Smyth spoke to the tower officer, placed the paperwork in the tower's bucket, and informed Officer Speers that Plaintiff had locked up. Officer Speers then took Plaintiff to cell 214, told Plaintiff the toilet did not work well, and wished him good luck in getting it fixed any time soon.
On or around March 8, 2009, Defendant Sedwick came by the cell and Plaintiff informed her that he locked up yesterday, he was waiting to go to ad-seg, and the toilet did not work. Defendant Sedwick said she knew and was going to place a work order for a plumber, and she told Plaintiff he would have to use a bucket for now, which she later brought to him.
Over the next few days on several occasions, Officers Moorelock and Speer came by Plaintiff's cell and told him that Defendants Carlson and Garcia wanted him to move to cell 143 in building 3. Plaintiff again said he could not get up and down from the top bunk in cell 143, asked why he could not go to ad-seg, and stated that he had guys coming up to his cell door telling him that they were going to kill him for ratting out their shot caller. Officer Speer just smiled and said, "Ad/Seg is full but they said cell 143 in 3 block has an Ad/Seg pending sign on the door." (Amend. Comp., p. 10.)
Between March 8, 2009, and March 18, 2009, Officer Moorelock, his two partners, Officer Speer, Defendant Sedwick, and Defendant Doe 2 were involved in the controlled feeding of inmates in building 5. At no time were other inmates allowed to be around Plaintiff's cell when Doe 2 opened the cell door so that officers could pass him his food tray, ...