The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND CERTAIN DEFENDANTS THIRTY-DAY DEADLINE
Plaintiff Bryan E. Ransom ("Plaintiff") is a prisoner proceeding pro se in this civil rights action. Plaintiff originally filed his action in the Kings County Superior Court on June 26, 2012. Defendants paid the filing fee and removed the action on August 16, 2012.*fn1 Plaintiff names the following Defendants: Correctional Sergeants R. Vogel, A. Perez, J. Watkins and E. Molina, Correctional Officers Mariscal, Cortez, M. Singh, R. Martines, D. Vellejo, R. Aguirre, B. Wooden, Alanis, Messick, Hieng, D. Lovelady, J. Faldon, G. Torres, Quillen, Hayward, D. Riley and H. Rocha, Doctors Ulit, Hugh, Wang, Moon, Clark, R. Gill and J. Sao, CDCR undersecretary S. Kernan, Wardens S. Hubbard, R. Lopez and C. Gibson, Captain B. Weaver, CEO Macias, CMO C. McCabe, Nurses D. Strome, Rouch, J. Faldon, R. Herrera, S. Dougherty and J. Kaiser, Dietician M. Brooks, and numerous John Does.
On January 31, 2013, the Court screened the complaint and gave Plaintiff the option of proceeding on the cognizable claims or filing a First Amended Complaint. Plaintiff chose to file a First Amended Complaint on March 6, 2013, and it is now before the Court for screening.
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present 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.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is confined in the Secured Housing Unit ("SHU") at Corcoran State Prison
("CSP"), where the events at issue in this action occurred.
Plaintiff contends that on July 1, 2011, he notified Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden and John Does 1-10, that he was a participant in a statewide indefinite prisoner solid-food hunger strike. The hunger strike was launched in response to the conditions in SHUs throughout CDCR. Plaintiff contends that this hunger strike did not violate any rules.
Plaintiff alleges that from July 2, 2011, through July 19, 2011, in retaliation for his hunger strike, Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden and John Does 1 through 10, implemented and/or enforced a policy and practice that prohibited inmates who were on any type of hunger strike from receiving their daily state issue bag lunches and meal trays. This policy deprived Plaintiff of his daily state issue of "non-solid" food items for eighteen consecutive days.*fn2
He further alleges that to cover up their deprivation, Defendants Marsical, Martines, Vellejo, Singh, Aquirre, Wooden and John Does 1-10 placed false entries in the daily activity log indicating that Plaintiff had refused his meals and/or tray. Plaintiff states that he asked Defendants Marsical, Cortez, Martines, Vallejo, Singh, Aquirre and Wooden why they were withholding his food, and they told him that they were following the orders of their supervisors, R. Vogel and A. Perez. Plaintiff asked Defendants Vogel and Perez why they ordered staff to withhold their food, and they told Plaintiff that they do not make any distinction between any categories of hunger strikes, and that if they allowed staff to give Plaintiff non-solid food, Plaintiff would maintain his hunger strike indefinitely. Plaintiff alleges that the orders of Vogel and Perez have caused excessive pain and weight loss.
Plaintiff alleges that each day between July 4, 2011, and July 18, 2011, he told medical staff John Does 11 through 20 that he was on a solid food diet and that staff had been withholding his daily state issued food trays since July 2, 2011. Each time, John Does 11-20 stated that it was not their concern and had him escorted back to his cell.
On July 7, 2011, Plaintiff was transported to the emergency room at CSP. He told Defendant Ulit that he was on a solid food hunger strike and that staff had been withholding his food trays since July 2, 2011. Defendant Ulit failed to intervene by giving Plaintiff food and instead had him escorted back to his cell.
On July 19, 2011, Plaintiff was transported to CSP's emergency room for medical evaluation. Plaintiff told Defendant Ulit that he had been on a hunger strike since July 1, 2011, and that for the last eighteen days, prison officials had been withholding his daily state issue of non-solid food items. Escorting officers John Doe 1 and 2 did not dispute this. Defendant Ulit found Plaintiff to be dehydrated and malnourished and admitted him to CSP's hospital for monitoring and IV fluids. He ordered that Plaintiff be placed on a 1,125 calorie liquid diet of "Nutren." This was below the minimum daily requirement of 1,800 calories and subsequently caused Plaintiff great pain and continued weight loss.
Two hours after his admittance, a team of outside lawyers visited Plaintiff to ask about the withholding of food. The following day, Defendant Clark interviewed Plaintiff and wanted to know what he told the lawyers. He told Defendant Clark that the lawyers were investigating the withholding of food and he affirmed their allegations. Defendant Clark told Plaintiff that they were not going to let him use the medical facility to "grand stand" his hungers strike and that if he wanted food, all he had to do was stop the hunger strike. When Plaintiff refused, Defendant Clark told him that he would make sure he was discharged from the hospital.
Between July 19, 2011 and August 1, 2011, Plaintiff's weight continued to decline due to his deficient caloric diet. Each day, he asked Defendants Moon, Clark, Hubbard, Weaver and John Does 21 through 30 to increase his Nutren to 1,800 calories to stop his hunger pains and weight loss. They refused, stating that they did not want to accommodate his hunger strike. Subsequently, John Does 21 through 30 placed false entries into the log indicating that Plaintiff had refused his meal trays.
On July 27, 2011, the "Prison Law Office" inquired with CDCR headquarters about Plaintiff's allegations of food withholding. CDCR agreed that the prisoners on a solid-food hunger strike would not be denied liquids. However, rather than intervening, Defendants CDCR and Kernan elected to issue a memorandum to all CDCR prisoners threatening that any participation in the hunger strike would be considered disruptive behavior and met with disciplinary action. Plaintiff alleges that this caused a chilling effect and served no legitimate penological interest.
On August 1, 2011, Defendant Clark told Plaintiff that he and Defendant Wang decided to discontinue his Nutren and kick him out of the hospital as a deterrent to his continued hunger strike. Defendant Clark also stated that the Nutren diet was too expensive and set a bad precedent. On August 2, 2011, Defendant Clark discontinued his Nutren, discharged him and returned him to the SHU, despite knowing that staff would continue to withhold his food.
Plaintiff alleges that Defendants Ulit, Moon, Clark, Wang, Hubbard, Weaver and John Does 21-30 had a responsibility to insure that Plaintiff received an 1,800 calorie liquid diet of Nutren. He further alleges that Defendants Clark and Wang had a responsibility to maintain Plaintiff on his liquid diet of Nutren while he was on the hunger strike. He contends that the actions of these Defendants had a chilling effect and had no penological interest.
On August 3, 2011, Plaintiff placed Defendants Hieng, Alanis and Watkins on notice that he had been on a solid food hunger strike since July 1, 2011. Defendant Hieng told Plaintiff that as long as he was on a hunger strike, he would not receive his daily meals. Defendants Hieng, Alanis, Messick, Watkins and John Does 31-40 withheld his food for three more days, until Plaintiff stopped his hunger strike. He contends that they had a responsibility to insure that he received his food, and that their failure to do so had a chilling effect.
Plaintiff stopped his hunger strike when he believed that Defendant Kernan would consider the strikers' demands. However, on October 2, 2011, Plaintiff placed Defendants Alanis, Messick, Lovelady and Hubbard that he would be resuming his hunger strike. In retaliation, Defendants Alanis, Messick, Loveland and John Does 41-50 withheld Plaintiff's food for thirteen days. Defendant Hubbard was aware, from Plaintiff's prior complaints, that staff was withholding food, but failed to intervene. Defendants Alanis, Messick and Loveland told Plaintiff that until they received orders from superior officers, they would withhold food. To cover up their actions, Defendants Alanis, Messick and John Does 41-50 placed false entries in the log book indicating that Plaintiff had refused his food.
Between October 6, 2011 and October 14, 2011, Plaintiff explained to Defendants Moon, Ulit and John Does 51-60 that prison officials had been withholding food since October 2, 2011.
They refused to provide Plaintiff with a substitute medical diet and repeatedly returned him to his cell without assistance.
Consequently, on October 15, 2011, Plaintiff was forced to temporarily discontinue his hunger strike. He alleges that Defendants Alanis, Messick, Lovelady, Hubbard, Hugh, Moon, Ulit and John Does 41-60 had a responsibility to insure that Plaintiff was provided with adequate nutrition, but failed to do so. He alleges that this caused a chilling effect.
Plaintiff's allegations then skip to almost one year later, October 13, 2012. His allegations involve the similar claims of denial of food and/or adequate nutrition during his hunger strike, and continue through January 11, 2013. These allegations are made against separate Defendants as those involved in the 2011 events. These Defendants include Defendants Faldon, Molina, Torres, Quillen, Strome, Herrera, Gill, Dougherty, Kaiser, Sao, Brooks, Hayward, Riley, Rocha, Rouch, McCabe and John Does 61-70, 71-80 and 81-90.*fn3
Finally, Plaintiff alleges that between 2010 and 2013, Defendants Macias, Clark, Lopez, Hubbard and Gibson implemented operational policy Number 1051, which states that once an inmate accepts a meal tray, or if staff witness the inmate consume food, the hunger strike is declared over. Plaintiff contends that this has been interpreted by staff to allow them to withhold his food. He contends that they are aware of this interpretation, but failed to intervene. Their failure to do so caused Plaintiff great pain, emotional distress and weight los
Based on these allegations, Plaintiff alleges the following causes of action:
1. Retaliation in violation of the First Amendment against Defendants Vogel, Perez, Marsical, Cortez, Martines, Vellejo, Singh, Aguirre, Wooden, Ulit and John Does 1-20 based on their withholding of food;
2. Retaliation in violation of the First Amendment against Defendant Kernan and CDCR based on their threat of disciplinary measures;
3. Retaliation in violation of the First Amendment against Defendants Wang, Moon, Clark, Hubbard, Weaver and John Does 21-30 based on their refusal to increase his liquid ...