ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 1 THIRTY-DAY DEADLINE
I. Procedural History, Screening Requirement, and Standard
On September 7, 2011, Plaintiff Nestor Daniel Hernandez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to provide showers and only providing a portion of meal servings. Doc. 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 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 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.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
II. Plaintiff's Complaint
In Plaintiff's complaint, he names Correctional Officers Olmos, Acosta, and Clinerd, who were employed at California Correctional Institution, Tehachapi. Compl. at 1-2, Doc. 1.
In Plaintiff's complaint, he concedes non-exhaustion, stating his inmate appeal was still at the first level of review; that he wishes to file his complaint concurrently while exhausting; and that he cannot exhaust because the institution will not agree to a money settlement. Id. at 6.*fn1
Plaintiff states that on various dates in June, July, and August 2011, defendants Olmos, Acosta, and Clinerd were assigned to unit 2 housing for housing functions, such as showering, and Plaintiff did not receive a shower while on lockdown status. Id. at 3. Plaintiff signed his complaint on September 5, 2011, and Plaintiff states that since his arrival on June 28, 2011, he has only showered 10 times in 63 days. Id.
On August 1, 2011, defendant Olmos accused Plaintiff of talking in his cell and disciplined him by serving only one-fourth of a regular meal portion consisting of 1 teaspoon of beans, 1 teaspoon of corn, 1/4 teaspoon of rice, 1/4 portion of fish, 1 slice bread, and a piece of cake. Id. at 4. The officer told Plaintiff that at that rate, he would help Plaintiff lose 300 pounds. Id. On August 3, 2011, defendant Olmos stated he heard someone talking in section (A), so he served cells 201 to 209 with reduced meal portions consisting of 3 pieces of lettuce, 1/4 piece of turkey, 1 teaspoon of carrots and peas, 1/2 teaspoon mashed potatoes, 1/2 slice of bread, and 1 slice of apple crisp. Id. Defendant Olmos had defendant Acosta bring Plaintiff the food. Id. These officers failed to provide a nutritionally balanced diet allotted to inmates per prison rules and regulations. Id.
For relief, Plaintiff seeks one million dollars ($1,000,000) in compensatory, punitive, and monetary damages; and to reprimand the Department of Corrections ...