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Jorge Enrique Murillo v. Sergeant Bueno

April 20, 2013

JORGE ENRIQUE MURILLO,
PLAINTIFF,
v.
SERGEANT BUENO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS ECF No. 11 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Jorge Enrique Murillo ("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 January 20, 2012, Plaintiff filed his complaint. ECF No. 1. On October 9, 2012, the Court screened Plaintiff's complaint and dismissed it for failure to state a claim, with leave to amend. ECF No. 10. On November 26, 2012, Plaintiff filed his First Amended Complaint. ECF No. 11.

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. Id. § 1915A(b)(1),(2).

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 2 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 3 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 4

A complaint must contain "a short and plain statement of the claim showing that the pleader 5 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 6 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 7 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 8 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 9 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 0 allegations are accepted as true, legal conclusions are not. Id.

II. Summary of First Amended Complaint

Plaintiff was incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names the following as Defendants: sergeant Bueno, and correctional officers Aguirre, Stoll, and Field.

Plaintiff alleges the following. On January 20, 2011, Plaintiff arrived at CSP and was housed in a holding cage located inside the visiting room. Plaintiff was later transferred to the Security Housing Unit ("SHU"), Building 4A Right, where he was placed in a 28 square foot cage. Eighteen of the square feet were taken up by a mattress.

Plaintiff was held in that cage until January 25, 2011, approximately five days. Plaintiff was provided only a blanket. Plaintiff was not provided a shower during that time. The lights were on 24-hours a day. Plaintiff was not provided a toothbrush, toothpaste, soap, toilet paper, or deodorant. Plaintiff requested that he needed to be housed in a warm environment, because of pins in his left leg that caused him pain in a cold environment. The temperature in the cage reached the forties. Plaintiff had a blanket, but cold air still penetrated it. Plaintiff had only six ounces of water in the morning and an eight ounce carton of milk as his sources of liquid. Plaintiff was allowed to use the restroom only once a day. A filthy rodent was present each night. Defendants were notified of Plaintiff's issues with his housing, but failed to act to change it for five days.

Plaintiff requests as relief compensatory and punitive damages, and declaratory relief.

III. Analysis

A. Eighth Amendment

Plaintiff contends deliberate indifference to his conditions of confinement. The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate 5 comfortable prisons." Farmer v. Brennan, 511 ...


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