The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis on his complaint seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. See ECF No. 4.
On November 9, 2012, the court screened plaintiff's first amended complaint (ECF No. 5), and dismissed it with leave to amend. See ECF No. 8. In particular, the court found that plaintiff's claims against the California Department of Corrections and Rehabilitation ("CDCR") and Prison Industry Authority ("CAL PIA") were barred by the Eleventh Amendment. See id. at 4. The court further found that there was no indication that plaintiff had exhausted his administrative remedies. Id.
On February 15, 2013, the court screened plaintiff's second amended complaint, finding that it failed to cure the deficiencies identified in the November 9, 2013 order and dismissing with leave to amend. The court specifically advised plaintiff that no further amendments would be allowed. In particular, the court found that plaintiff had named as defendants entities immune from suit under the Eleventh Amendment. The court additionally noted that plaintiff failed to support his argument that he was excused from exhausting his administrative remedies. The court specifically advised plaintiff that, if he chose to amend the complaint, he "must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights."
Plaintiff has now filed a third amended complaint ("3AC"). ECF No. 14. The 3AC does not cure the deficiencies raised in the court's February 15, 2013 order. Accordingly, the court will dismiss the action for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(1)(b)(1).
Summary of the Amended Complaint
Plaintiff alleges that defendants Scott Perkins, Eric Reslock, and Tim Hart, all apparent employees of CAL PIA, were negligent in manufacturing and distributing "Bar and Bitz" brand soap because the soap contained a carcinogen in violation of state law, and the Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution. ECF No. 14 at 1.
Plaintiff claims that he has been incarcerated for 19 years, and that in the last 2 to 3 years, has been forced to use PIA soap because he is indigent. See ECF No. 14 at 2. Plaintiff alleges that he must comply with state grooming regulations for inmates, or face being deemed a "program failure." Id. at 2-3. Plaintiff alleges that PIA soap "was discovered to possess an ingredient called (CARCINOGEN) which is a cancer forming agent." Id. at 3. On July 29, 2012, PIA issued a memorandum recalling the soap. Id. Plaintiff appears to allege that defendants knew that the soap was toxic before July 29, 2012. Id. at 4.
Plaintiff claims that "the damage has been done," but that any "medical issues won't arrive for years to come." Id. at 4. Plaintiff claims that he "has suffered symptoms of Frequent Urination, Nightime [sic] Urination, Bone aches, headaches and changing of the skin which is consistent with symptoms placing Plaintiff 'at risk' for Bladder, Lung, Neorologic [sic] and Muscular Cancer. . . ." Id. at 5. He accordingly seeks: (1) monetary damages of $1 million;
(2) punitive damages of $10 million "for the mental anguish suffered due to the slow and agonizing MURDER of my existence as the Cancer eats away may [sic] Tissues, and organs,"
(3) compassionate release; and (4) payment for treatment and care. Id. at 6.
Attached to the 3AC are several exhibits. Exhibit A is a Memorandum dated July
29, 2012 from the Warden at California State Prison-Solano which reads that "[d]uring CAPLIA's annual review of product Material Safety Data Sheets a trace amount of chemical that is listed for review under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) as a ...