The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS ECF No. 9
Plaintiff Horace Mann Williams ("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 May 4, 2012, Plaintiff initiated this action by filing his complaint. On November 27, 2012, the Court screened Plaintiff's complaint and found that it stated a cognizable First Amendment claim against Defendants Trimble, Agu, Valdivia, and Lopez, and a cognizable Eighth Amendment claim against Defendants Lopez, Valdivia, Marisol, and Agu. Plaintiff was provided the opportunity to file an amended complaint or notify the Court that he wished to proceed on the cognizable claims only. On December 20, 2012, Plaintiff filed his First Amended Complaint. ECF No. 9. 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).
"Notwithstanding 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). 7
A complaint must contain "a 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 "[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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 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 Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: associate warden Marisol; correctional counselor Garza; correctional sergeant Sica; and correctional officers Valdivia, Lopez, Agu, and Trimble.
Plaintiff alleges the following. On December 9, 2009, Plaintiff was initially moved to Facility C, Building 6, Cell 114. First Am. Compl. ("FAC") ¶¶ 1, 6. Plaintiff overheard Defendant Valdivia telling inmate Tamayo, Plaintiff's new cell mate, that Tamayo did not want Plaintiff in his cell as he was a homosexual and had a bad case. FAC ¶ 7. Inmate Tamayo later aggressively entered the cell and demanded to know why Plaintiff did not inform Tamayo that he is a homosexual. FAC ¶ 11. Plaintiff told Tamayo that he was not a homosexual. FAC ¶ 12. Inmate Tamayo showed Plaintiff several CDCR documents which indicated Tamayo's history of violence, especially against those who were homosexual. FAC ¶ 18. Between December 9 and December 15, Plaintiff was subject to threats of violence by inmate Tamayo. FAC ¶ 20. Several inmates also approached Plaintiff to solicit sexual acts and demand that drugs be brought into the institution via Plaintiff's wheelchair. FAC ¶ 21. On December 14, 2009, Plaintiff approached Defendant Agu to 2 inform him of the threats. FAC ¶ 21. Defendant Agu warned Plaintiff that Defendants Valdivia and 3 Lopez do not like blacks, whether inmates or officers. FAC ¶ 23.
On December 15, 2009, Plaintiff exited his cell with his property and approached Defendant Lopez, telling him that he could not remain in the cell and that he felt his life was in jeopardy. FAC ¶ 25. Inmate Tamayo was subsequently moved out of the cell. FAC ¶ 28. On December 20, 2009, Plaintiff completed an inmate appeal and submitted it to Defendant Agu. FAC ¶¶ 29-30. Defendant Agu accepted it and walked away, but then returned twenty minutes later, informing Plaintiff that the 9 appeal box was missing. FAC ¶¶ 30-33. Plaintiff requested that Defendant Agu forward it to the appeals coordinator, but he refused, stating that he had to work with the racists. FAC ¶¶ 34-35.
On December 21, 2009, Plaintiff submitted the inmate appeal to Defendant Trimble for forwarding. FAC ¶ 37. Defendant Trimble also refused, stating that he did not want to get involved with Plaintiff's issue with Defendant Valdivia. FAC ¶¶ 38-39. Plaintiff during evening mail presented the inmate appeal to Defendant Agu, this time for processing as legal mail. FAC ¶ 41. Defendant Agu accepted the envelope, looked through it, passed it back to Plaintiff for him to seal, and the envelope passed back to Defendant Agu. FAC ¶ 42.
Plaintiff the next day approached Defendants Agu and Lopez, and asked Defendant Agu if the inmate appeal had been processed. FAC ¶¶ 45-46. Defendant Agu stated that it had not. FAC
¶ 48. Later, at Plaintiff's cell, Defendant Agu stated that it was not processed and told Plaintiff that Defendant Lopez took his appeal to Defendant ...