The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION (ECF Nos. 49) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Hilton Fisher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on April 15, 2011. On March 14, 2012, Plaintiff's first amended complaint was dismissed with leave to file an amended complaint within thirty days. (ECF No. 29.) On April 27, 2012, Plaintiff filed a second amended complaint. (ECF No. 34.) On November 19, 2012, the Court dismissed Plaintiff's Eighth Amendment and due process claims with prejudice and granted Plaintiff leave to file a third amended complaint limited to Plaintiff's equal protection claim. (ECF No. 38.) Currently pending is Plaintiff's third amended complaint filed on January 9, 2013.*fn1 (ECF No. 49.)
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 on which relief may be granted," or that "seek monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
II. Third Amended Complaint Allegations
Plaintiff brings this action against Defendant S. Adair for alleged violations of the Eighth Amendment and of the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 49.) On January 29, 2010, Defendant Adair conducted a mental health intake interview with Plaintiff. Defendant Adair documented that Plaintiff had been placed in a mental health crisis bed because he had been having thoughts urging him to rape someone. Defendant Adair documented Plaintiff's statements that he did not want to be a part of the protective custody program, that he wanted to give up his sensitive needs yard ("SNY") status and that his cellmate was safe because he had no thoughts or feelings about hurting his cellmate. (Id. at 2.) Plaintiff alleges that Defendant Adair allowed Plaintiff to return to his cell for six days with an inmate that wanted to take part in the SNY program. (Id. at 3.) Plaintiff also alleges that Defendant Adair failed to report to the Correctional Sergeant about potential safety concerns due to Plaintiff's hallucinations and thoughts urging him to rape someone. (Id. at 4.)
During an Inmate Classification Committee ("ICC") hearing on February 3, 2010, Defendant Adair reported that during the intake interview, Plaintiff stated that he wanted single cell status and felt he may rape his cellie. (Id. at 4.) Plaintiff alleges that on February 9, 2010, Defendant Adair filed a rules violation report against Plaintiff for threatening an inmate.
On February 10, 2010, Plaintiff was interviewed by Correctional Officer D. Jacobs and stated that he never told Defendant Adair he wanted to rape someone and he never threatened his cellie with sexual acts. He also stated that he did not feel safe on the "Ad-Seg." (Id. at 7-8.)
On March 9, 2010, Defendant Adair was called as witness regarding the rules violation report. Defendant Adair was asked why he waited until February 3, 2010, to take action regarding the threatening statement made by Plaintiff on January 29, 2010. Defendant Adair responded that there was no threat made against Plaintiff's cellmate, and there was no concern regarding the safety of Plaintiff's cellmate. (Id. at 8-9.) Defendant Adair also responded that when the subject of Plaintiff's request for single cell status was brought up, he relayed the comments made by Plaintiff and his opinion regarding the manipulative nature of those comments. (Id. at 9.)
Plaintiff alleges that Defendant Adair violated his Equal Protection rights by denying him mental health treatment on February 3, 2010. Plaintiff also alleges that he was placed in administrative segregation from January 29, 2010, until January 19, 2011, and when he returned to the ...