The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge 5
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Billy Ray Maldonado ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On December 30, 2011, Plaintiff filed his complaint. ECF No. 1.
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 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6
U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9
Plaintiff is incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California,
where the events giving rise to this action occurred. Plaintiff names as Defendants warden R. H. Trimble, A. Nesbit, H. Martinez, and R. Corona.
Plaintiff alleges the following. Plaintiff suffered previous injuries, such as serious had concussions, bone fractures, poor lower leg blood circulation, cerebral palsy, schizophrenia, dyslexia, and posttraumatic stress. Plaintiff contends that he should be treated as an Americans with Disabilities Act ("ADA") inmate and should not be forced with a job assignment. Plaintiff complains that the appeals office at PVSP has failed to screen Plaintiff's inmate appeals. Plaintiff attaches as exhibits several inmate appeals which were screened out for various reasons.
Plaintiff contends a violation of the Eighth Amendment and retaliation, and a state law claim of negligence. Plaintiff requests as relief compensatory and punitive damages.*fn1
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in 2 doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 3 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an 4 objective and a subjective prong. First, the alleged deprivation must be, in objective terms, 5 "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 6 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate 7 health or safety . . . ." Id. at 837. 8 "Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this 9 standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person ...