The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS FINDING THAT PLAINTIFF STATES COGNIZABLE CLAIMS AND RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (ECF No. 27)
OBJECTIONS DUE WITHIN THIRTY DAYS SCREENING ORDER
On December 7, 2009, Plaintiff Raymond Villa, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court issued an Order severing Plaintiff's claims from the initial lawsuit filed on behalf of Plaintiff and a number of other prisoners. (ECF No. 2.) On October 4, 2010, Plaintiff filed his First Amended Complaint. (ECF No. 11.) Plaintiff's First (ECF No. 11), Second (ECF No. 22), and Third (ECF No. 24) Amended Complaints were each screened and dismissed, with leave to amend, for failure to state cognizable claims. (ECF Nos. 15, 23, and 26.) Plaintiff's Fourth Amended Complaint (ECF No. 27) 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 FOURTH AMENDED COMPLAINT
The Fourth Amended Complaint names the following Wasco State Prison (Wasco) officials as Defendants: (1) P.L. Vasquez, Warden; (2) J. Ortega, Appeals Coordinator; (3) John Doe 1, D Yard Captain; (4) John Doe 2, D Yard Sergeant, (5) Riece, Correctional Officer (CO), D Yard, Building 4; (6) Rios, CO, D Yard, Building 4; and (7) Ohara, CO, D Yard, Building 5.
Plaintiff alleges the following:
There was an altercation between Bulldogs and Blacks (prison gangs) on November 9, 2009 in Building 4, D Yard. The incident was quickly resolved. All inmates housed in D Yard are similarly situated gang members segregated by affiliation. Defendant Does 1 and 2 initiated a lockdown of Bulldog and Black affiliated gang members in Building 5. Plaintiff was a Bulldog in Building 5, D Yard. (Compl. at 4.) The Does instructed Plaintiff and the other affiliated gang members not to retaliate as the situation was resolved. However, the confinement continued. (Id. at 5.)
Defendants Ohara, Riece, and Rios alternated managing the lockdown. For the first ten days Plaintiff was not given an opportunity to shower. After which Ohara allowed Plaintiff no more than two opportunities to shower per week. "But, more often than not, she usually found an excuse to cut the showers off early, or refused to give us showers at all." (Id. at 6.) In spite of repeated requests, Ohara did not once provide Plaintiff with materials to clean his cell.
Plaintiff asked Defendant Rios during his shifts about the inadequate opportunities to shower. Rios responded, "'Why do you need a shower?, you're a Bulldog ain[']t you?, you should be used to taking Dog Bathes!'" (Id. at 7.) Rios repeated such derogatory comments throughout the ten week lockdown. Defendant Riece made similar derogatory references to Plaintiff's gang affiliation when he denied Plaintiff's request for a means to clean his cell. (Id.)
Plaintiff complained to Defendant Doe 2 about being denied adequate showers and cleaning materials. Doe 2 responded, "'This is Ohara's shift, she will run the showers ...