The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Timothy Bertram ("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 May 17, 2012, 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. Id. § 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." Id. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader
2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8
II. Summary of Complaint 9
Plaintiff was incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names as Defendants correctional officers S. Pike, J. Butler, and D. Espinoza, and correctional sergeant R. Timonen.
Plaintiff alleges the following. Plaintiff was bullied and teased by other inmates near his bed because he is blind in his right eye, which causes it to wander. Plaintiff had been moved into the dorms of Unit II facility at CCI. The environment was hostile because of the close proximity of the beds. The dorms were designed to house 100 inmates, but there were 186 inmates in the dorm at the time.
On June 15, 2009, Plaintiff approached Defendant Butler at the Dorm 1 office to ask for a bed move, stating that he had problems with his neighbors, namely inmates Sigala, Garcia, and Brown. Plaintiff complained that the inmates were being rude and disrespectful to Plaintiff while he tried to sleep. The inmates would slam their lock and locker door, which is only 6 inches from Plaintiff's head while he slept. Defendant Butler told Plaintiff to ask Defendant Pike. That same day, Plaintiff approached Defendant Espinoza at the Dorm 6 office and asked if he could move to Dorm 6. Defendant Espinoza told Plaintiff it was okay for him to move, and to ask Defendant Pike in Dorm 1 to do it. On June 18, 2009, Plaintiff approached Defendant Pike and told him of his problems with his neighbors. Defendant Pike told Plaintiff that inmate Brown had approached Pike the previous week to say that Brown was afraid that Plaintiff would attack Brown. Defendant Pike stated that he would move Plaintiff.
On June 25, 2009, Plaintiff had not been moved. Plaintiff again approached Defendant Pike, explaining that the slamming noise while Plaintiff slept was affecting Plaintiff's mental stability. 2
Defendant Pike responded that Rome was not built in a day, and walked away. Plaintiff that same 3 day explained to his neighbors that he had requested a move. Inmate Sigala stated that if Plaintiff 4 did not like ...