United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (DOC. 12.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
Mark Huerta ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 17, 2013. (Doc. 1.) The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on February 25, 2014, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On April 3, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 12.)
II. SCREENING REQUIREMENT
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).
A complaint is required to 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)). While a plaintiff's allegations are taken as true, 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). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. 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 Centinela State Prison in Imperial, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR). The events at issue in the First Amended Complaint allegedly occurred at Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there. Plaintiff names as defendants M. D. Biter (Warden, KVSP), E. Blanco (Chief Deputy Warden, KVSP), J. D. Lozano (Chief, Office of Appeals), Captain R. Davis (Appeals Examiner), B. DaViega (Appeals Coordinator), and Correctional Officer K. Carter) (collectively "Defendants"). Defendants were employed by the CDCR at the time of the events at issue. Plaintiff's factual allegations follow.
Plaintiff arrived at KVSP on April 26, 2010. Shortly after his arrival, he was informed of a Notice dated April 1, 2010, signed by Warden Harrington [not a defendant], that the prison had recently violated a drinking water standard. The Notice stated that:
"Although this is not an emergency, [prisoners at KVSP] have a right to know what [they] should do, [and] what [prison officials] are doing to correct this situation. [Prison officials] routinely monitor for the presence of drinking water contaminants. Based on data gathered through monitoring [KVSP] wells over the last four quarters, the running annual average for wells 1 and 2 is 0.012 mg/L and 0.018 mg/L respectively. This is above the U.S. EPA standard or maximum contaminant level (MCL) of 0.010 mg/L.
What should [prisoners] do?
[Prisoners] do not need to use an alternative water supply (e.g., bottled water). This is not an emergency. If it had been, [prisoners] would have been notified immediately. However, some people who drink water containing arsenic in excess of the MCL over many years may experience skin damage or circulatory system problems, and may have an increased risk of getting cancer. If you have ...