The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 23 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Fred Gomez ("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 August 26, 2011, Plaintiff initiated this action by filing his complaint. On May 2, 2012, the Court found that Plaintiff stated a cognizable claim for relief against Defendant Swaim for deliberate indifference to Plaintiff's conditions of confinement in violation of the Eighth Amendment. On September 19, 2012, Plaintiff filed his First Amended Complaint, which was docketed on November 13, 2012. ECF No. 23. The First Amended Complaint is 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). 2 "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 5
A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of First Amended Complaint
Plaintiff was incarcerated at North Kern State Prison ("NKSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants sergeant Swaim, John Does 1 through 6, lieutenant G. Becerra, captain K. Daviega, and warden Maurice Junious.
Plaintiff alleges the following. On April 5, 2010, Defendant John Doe 1 and 2 denied Plaintiff his evening meal. On April 6, 2010, Defendants John Does 3 and 4 denied Plaintiff his breakfast and lunch meals. On April 6, 2010, Defendant Does 5 and 6 denied Plaintiff his dinner meal. Plaintiff complained to sergeant Swaim, who informed Plaintiff that he would not be receiving his meals as punishment for being cell-extracted.
Plaintiff was also placed under management cell status, which included denial of: mattress, linen, blankets, towel, cleaning clothing, socks, soap, toilet paper, spoon, cup, toothbrush or toothpaste, pens and pencils, paper, mail, and legal materials. Plaintiff was forced to sleep in a cold cell with temperatures beyond freezing, on a metal bunk without covering. Plaintiff was issued only one pair of boxers over twenty two days. Plaintiff suffered from hallucinations, sleep deprivation, disorientation. Defendants Swaim, Becerra, Daviega, and Junious forced the management cell status on Plaintiff.
Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, and costs of suit.*fn1
The Eighth Amendment's prohibition against cruel and unusual punishment protects 4 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 5 confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v. Chapman, 452 U.S. 337, 347 6
(1981). Although prison conditions may be restrictive and harsh, prison officials must provide 7 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Rhodes, 452 U.S. 8 at 347. To prevail on a claim that a prisoner's Eighth Amendment right to humane conditions of 9 confinement were violated, the prisoner must prove that the prison official knew of and disregarded an excessive risk to the prisoner's safety, which was presented by the conditions of his confinement. Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001). ...