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Tyrone Reed, Sr v. K. Harrington

April 13, 2013

TYRONE REED, SR.,
PLAINTIFF,
v.
K. HARRINGTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 11.) OBJECTIONS, IF ANY, DUE IN 30 DAYS

I. BACKGROUND

Tyrone Reed, Sr. ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 14, 2011. (Doc. 1.) On May 4, 2012, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On May 30, 2012, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 11.)

On June 14, 2012, the Court issued an order requiring Plaintiff to file a more definite statement of the facts involved in this action. (Doc. 13.) On July 9, 2012, Plaintiff filed a more definite statement. (Doc. 14.)

II. SCREENING REQUIREMENT

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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations 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. Id.

II. PLAINTIFF'S ALLEGATIONS

The events at issue in this action occurred at Kern Valley State Prison (KVSP) in Delano, California, where Plaintiff is now incarcerated. Plaintiff names as defendants Warden K. Harrington, State Water System ID#1510800, Governor Jerry Brown, and the Mayor of Delano. Plaintiff's factual allegations follow.*fn1

Plaintiff has been housed at KVSP since July 29, 2009. On April 1, 2012, the California Department of Corrections and Rehabilitation issued a notification explaining that during the past four quarters, the arsenic level in KVSP's drinking water exceeded the EPA's maximum contaminant level. (Exhibit to First Amd Cmp, Doc. 11 at 6.)

Warden Harrington is in charge of KVSP and is at fault for arsenic in the water.

The State Water System ID#1510802 (SWS) was responsible for E.coli being present in KVSP's drinking water in 2009, before the arsenic situation. Now, SWS has behaved indifferently by ...


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