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Lanard Kitchens v. Tordsen et al

November 30, 2012

LANARD KITCHENS,
PLAINTIFF,
v.
TORDSEN ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Lanard Kitchens ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff initiated this action on January 24, 2012. (Compl., ECF No. 1.) No other parties have appeared. Plaintiff's Complaint is now before the Court for screening.

I. 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 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, ____ U.S. ____, ____, 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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). 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.

II. PLAINTIFF'S CLAIMS

Plaintiff brings this action for violations of his rights under the First Amendment, Fourteenth Amendment, and Cal. Health & Safety Code § 120980. Plaintiff is currently incarcerated at Wasco State Prison. He was previously incarcerated as a pretrial detainee at Kings County Jail, where the alleged underlying events occurred. Plaintiff names the following individuals as defendants: 1) Tordsen, Kings County Deputy Sheriff/ Correctional Officer, 2) Senior Deputy Leach, Acting Shift Supervisor at Kings County Jail, 3) Deputy Sheriff T. Day, Correctional Officer at Kings County Jail, and 4) Sergeant Coker, Shift Supervisor at Kings County Jail.

His allegations, are as follows:

On December 29, 2010, Defendant Tordsen assigned Plaintiff to a cell that was covered in feces. (Compl. at 8.) The cell had been covered in feces by its prior mentally-disturbed occupant and was not cleaned before Plaintiff was transferred into the cell. (Id.) Defendant Tordsen provided Plaintiff with glass cleaner and toilet paper to use to clean the cell. (Id. at 9.) Usually workers, not inmates, clean the cells. (Id.) Plaintiff complained to Defendant Tordsen about the situation but he refused to move Plaintiff, provide him with a grievance form, or give him additional cleaning supplies. (Id. at 10.)

After Defendant Tordsen refused to move him, Plaintiff indicated he was suicidal and asked to be transferred to Suicide Watch. (Compl. at 11-12.) Plaintiff only made this request because he did not want to continue to stay in his assigned cell. (Id. at 11.) Defendants Coker, Leach, and Day responded to Plaintiff's alarm. (Id.) They said Plaintiff could either clean his assigned cell or go to Suicide Watch. (Id.) Defendants ultimately escorted him to Suicide Watch and unlawfully withheld his prior commissary purchase. (Id. at 12.) Plaintiff was removed from Suicide Watch the next day. (Id. at 13.)

Defendant Tordsen had Plaintiff returned to the filthy cell. (Compl. at 14.) Plaintiff began cleaning the cell and during the process fell on the floor. (Id. at 15.) Plaintiff was not treated for eight days and was ultimately found to have "facial paralysis." (Id.)

Defendant Tordsen subjected Plaintiff to cruel and unusual punishment by placing him in the filthy cell and having Plaintiff clean it; Defendant Day subjected Plaintiff to cruel and unusual punishment by placing him on Suicide Watch, not providing Plaintiff with his commissary purchase, and not having Plaintiff's assigned cell cleaned; Defendants Coker and Leach subjected Plaintiff to cruel and unusual punishment by allowing Defendant Day to carry out his actions; and Defendants Tordsen, Coker, Leach, and Day retaliated against Plaintiff by not providing him with grievance forms. (Compl. at 15-16.)

Plaintiff asks for declaratory relief, a preliminary and permanent injunction ordering staff members to stop retaliating against Plaintiff and for a change of venue in his criminal proceedings, $1,500,000 in compensatory damages against each Defendant, and a jury trial.

III. ANALYSIS

A. 42 U.S.C. ยง ...


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