The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 27) FOURTH AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SECOND SCREENING ORDER
Plaintiff Anthony Ray Evans is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
He has declined Magistrate Judge jurisdiction. (ECF No. 4.)
On July 27, 2012, the Court screened and dismissed Plaintiff's Complaint for failure to state a claim, but gave leave to amend. (ECF No. 11.) On August 16, 2012, Plaintiff filed a First Amended Complaint (ECF No. 14.) On August 17, 2012, Plaintiff requested and was granted leave to file a second amended complaint. (ECF Nos. 15, 16.) On September 4, 2012, Plaintiff lodged a Second Amended Complaint (ECF No. 21) which was filed by the Clerk as the Third Amended Complaint. (ECF No. 27.) The Third Amended Complaint 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 THE THIRD AMENDED COMPLAINT
Plaintiff's Third Amended Complaint re-iterates without augmentation Eighth and Fourteenth Amendment allegations found in the original Complaint. These allegations relate to 2010 events at California Correctional Institution ("CCI") where Defendants Burrows, Phillips, Sanders, and Steadman required Plaintiff take a cell-mate notwithstanding Plaintiff's history of violence against cell-mates (Third Am. Compl., at 4-5); Plaintiff attacked his cell-mate (Id. at 6), was pepper-sprayed and insufficiently decontaminated (Id.), and given rules violation(s) (Id. at 7-8); Defendant Sampson improperly handled and denied his related prison grievance. (Id. at 11-12.)
The Third Amended Complaint newly alleges that Defendant Matzen denied Plaintiff procedural due process in relation to a June 2012 ICC hearing by approving a cell-mate notwithstanding Plaintiff's documented single cell status at prior facilities based upon his violence against cell-mates (Id. at 14-15) and continuing safety concerns (Id. at 16); by removing him from the Mental Health Service Delivery System ("MHSDS") notwithstanding his documented mental health history (Id. at 15); and by use of an "underground rule" keeping Plaintiff in solitary (Security Housing Unit "SHU") confinement without "regularized due process" and in the absence of SHU-able offenses. (Id. at 17.)
He names as Defendants (1) Burrows, CCI Sergeant, (2) Steadman, CCI Associate Warden, (3) Phillips, CCI Correctional Counselor, (4) Sampson, CCI Appeals Coordinator, (5) Sanders, CCI Lieutenant, (6) Matzen, CCI Captain. (Id. at 1-3.)
He seeks monetary compensation. (Id. at 19.)
A. Pleading Requirements Generally
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. 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). 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 ...