The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 11
Plaintiff Dwayne L. Burgess ("Plaintiff") is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 11). On October 17, 2012, the Court dismissed Plaintiff's original complaint (Doc. 1) and granted Plaintiff leave to amend. (Doc. 8). Plaintiff filed his first amended complaint on December 10, 2012. (Doc. 11). Plaintiff names (1) E. Polanco and (2) P. Morales (collectively "Defendants") as defendants in his first amended complaint.*fn1 Id. at 2, ¶¶ 5-6. As required, the Court screens Plaintiff's first amended complaint. For the reasons set forth below, the Court dismisses Plaintiff's first amended complaint with leave to amend.
Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds in forma pauperis if the court determines that the case "fails to state a claim on which relief may be granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the level of the 2 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 3 contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 4
A.Federal Rule of Civil Procedure 8(a)
"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards 7 than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting 8 Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a 9 claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" (Id.) Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).
In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all nonconclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 1950.
In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 3 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, 4 or omitted to perform an act which he was legally required to do that caused the deprivation 5 complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 6 F.2d 740, 743-44 (9th Cir. 1978)). *fn2
At all times relevant to his complaint, Plaintiff was incarcerated at Kern Valley State Prison ("KVSP").*fn3 See (Doc. 11). Defendants are sued in their individual and official capacities as employees of KVSP. Id. at 2, ¶¶ 4-6. Plaintiff states his first amended complaint as follows:
On October 27, 2008, Defendant Polanco placed Plaintiff and several other inmates in an enclosed rotunda. Id. at 4, ¶ 7; 7 ¶ 19. Plaintiff spoke with Defendant Polanco and requested to speak with a sergeant. Id. at 4, ¶ 7. Defendant Polanco then ordered Plaintiff to return to his cell, but Plaintiff and the other inmates refused to comply. Id. at 4-5 ¶¶ 8, 9. Then, without any alleged provocation, Defendant Polanco threw a T-16 O.C. grenade in the rotunda where the inmates were assembled and walked away for approximately fifteen minutes. Id. at 5, ¶ 10. The inmates remained confined in the rotunda, which subsequently filled with the "toxic gas." Id.
On an undisclosed date, Defendant Polanco charged Plaintiff with unlawful assembly based on the October 27, 2008 incident. Id. at 5, ¶ 12. At a disciplinary hearing on the unlawful assembly charge, Defendant Morales denied Plaintiff's request for the presentation of witnesses. Id. at 6, ¶ 24. Defendant ...