United States District Court, E.D. California
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 13.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE-STRIKES" PROVISION SET FORTH IN 28 U.S.C. § 1915(g) ORDER
FOR CLERK TO CLOSE THIS CASE
GARY S. AUSTIN, Magistrate Judge.
Victor Jackson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this case on June 21, 2013. (Doc. 1.)
On July 10, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened Plaintiff's Complaint and issued an order on October 18, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On November 18, 2013, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 13.)
II. SCREENING REQUIREMENT
The in forma pauperis statutes provides that "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). 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences, " Doe I v. Wal-Mart Stores, Inc. , 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal , 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue allegedly occurred. Plaintiff names as sole defendant Food Manager J. Uhlik. Plaintiff's allegations follow, in their entirety:
On May 14, 2013, I was given a food tray with graffiti carved in it with the shaving from the graffiti still stuck in the tray and mixed with the food. I have worked in the kitchen and I know the problem is coming from the scullery where they clean the trays morning and night, that is where the problem is. J. Uhlik is the overseer of the scullery and after all the complaints and 602's on this issue he is very much aware of the problem and doing nothing about it for over a year now. I can't say how many inmates have put in complaints and 602's about this same issue. I cannot get that type of information being an inmate. I do know it is not the tier officers' fault, although it falls on their shoulders. And that is not right when it is J. Uhlik's responsibility to make sure everything is satisfactory when it gets here to the SHU and he has failed to do so. Just my luck, I didn't check my food on the morning of May 14, 2013 and just started eating and began to choke to death swallowing eggs and plastic as it stuck in the back of my throat taking my breath away. As I struggled it finally went down, I thank God I am alive. I would like compensation for the negligence I have suffered.
Plaintiff requests monetary damages.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was ...