The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING THE COMPLAINT WITH LEAVE TO AMEND (Doc. 7)
Plaintiff Desi Cardenas, III, ("Plaintiff") is a pre-trial detainee*fn1 proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 4 and 7). Plaintiff consented to the jurisdiction of the Magistrate Judge on August 30, 2011. (Doc. 5). On April 12, 2013, Plaintiff submitted his first amended complaint against the Tulare County Sheriff's Department ("Department"), Lieutenant ("Lt.) Fosnaugh, and Sergeant ("Sgt.") Maldonado seeking monetary and declaratory relief. (Doc. 7 at 1, 9-10). As required, the Court screens the first amended complaint, and for the reasons set forth below, the Court ORDERS that the first amended complaint be DISMISSED with a final opportunity to amend his complaint.
Because Plaintiff seeks redress from governmental employees in a civil action, the Court is 3 required to screen his complaint in order to identify any cognizable claims. 28 U.S.C. § 1915A(a)-(b). 4
The Court shall "dismiss the complaint, or any portion of the complaint, if the complaint (1) is 5 frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 6 relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 7 1915(e)(2)(B)(i)-(iii). 8
"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a 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, 556 U.S. 662, 676-684 (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 678) (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 679. 2
In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he 4 suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that 5 the violation was proximately caused by a person acting under color of state law. See Crumpton v. 6 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 7 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, 8 or omitted to perform an act which he was legally required to do that caused the deprivation of which 9 the plaintiff complains. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). 42 U.S.C. § 1983 does not create substantive rights, but rather services as a vehicle to protect federal rights which have been established elsewhere. Graham v. Connor, 490 U.S. 386, 393-394 (1989).
III. PLAINTIFF'S FIRST AMENDED COMPLAINT
Plaintiff identifies himself as a "Northern Hispanic" gang member and is incarcerated at the Bob Wiley Detention Center ("Bob Wiley"). (Doc. 7 at 2). From May 26, 2010, until August 20, 2010, he was housed in the "Casa"*fn2 where allegedly "Northern Hispanic" gang members subjected him to a hazing procedure. Id. at 2-4. Gang members forced him to disclose personal information, searched him, and made him sit or stand at attention against his will, resulting in a loss of his daily recreational activities. Id. at 3-4. Similarly, Plaintiff could not shower or cut his hair without permission from the gang members during this time. Id.
Plaintiff never reported this conduct to prison officials because he was afraid to do so. Id. at 4. Nonetheless, in August of 2010, Plaintiff's girlfriend contacted Bob Wiley officials and notified them that something was wrong with Plaintiff. Id. at 4. At the same time, it appears the gang members completed their hazing process and accepted Plaintiff. Id. at 5.
On December 13, 2010, Lt. Fosnaugh and Sgt. Maldonado discovered that Plaintiff intended to testify against Inmate Florez. Id. at 5. Plaintiff was then placed in a cell adjacent to Inmate Florez to 2 "collect 'information' that could be used on the stand." Id. Plaintiff was placed in a different cell on 3 December 14, 2010, where he remained until March 2, 2011. Id. at 6. During the same time, Plaintiff 4 alleges that Stg. Maldonado taunted Plaintiff for three days by occasionally walking past his cell and 5 winking at him. Id. at 6. 6
On March 1, 2011, an unnamed deputy informed Plaintiff that he was to testify against Inmate Florez the following day. Id. at 6. Sgt. Maldonado then placed Joseph Florez in the cell adjacent to 8 Plaintiff's. Id. at 6. Inmate Florez told Plaintiff that he was not "going to do anything to [Plaintiff] 9 yet," but he harassed Plaintiff all night. Id. Plaintiff feared that a deputy would open their cells and enable ...