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Cruz v. Gipson

United States District Court, E.D. California

June 20, 2016

VICTOR DE LA CRUZ, Plaintiff,
v.
C. GIPSON, Defendants.

          ORDER DISMISSING THIS ACTION FOR FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF ORDER THAT THIS ACTION COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g).

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1]Currently before the Court is Plaintiff’s November 30, 2015 third amended complaint, filed in response to the October 30, 2015, order dismissing the second amended complaint with leave to amend. (ECF No. 16.)

         I.

         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 on which relief may be granted, ” or that “seek monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)(citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Corcoran, brings this civil rights action against defendant CDCR officials employed by at Corcoran. Plaintiff names the following defendants: Warden C. Gipson; Chief Deputy Warden G. Santor; Associate Warden M. Sexton; Associate Warden R. Lambert; Associate Warden J. Johnson; Captain R. Broomfield; Capt. C. Moreno; Lieutenant C. Munoz; Lt. J. Callow; Sergeant D. Hernandez; Sgt. D. Madsen; Sgt. D. Case; Sgt. M. Calhoun; Sgt. A. Peterson; Sgt. J. Nail; Correctional Officer (C/O) P. Munoz; C/O K. Carter; C/O L. Borges; C/O S. Cordova; C/O P. Sanchez; C/O R. Botello; C/O J. Cordova; C/O P. Sanchez; C/O J. Renteria; C/O Zamora; Supervisor of Building Trades J. Carroll; Plumber C. Mauldin.

         In the order dismissing the second amended complaint, the Court noted that Plaintiff alleged that between September of 2011 and February of 2013, he and other inmates were in cells that “leaked and flooded with contaminated water (i.e. ‘from the tiers’). New mattresses, pillows, blankets, sheets, towels t-shirts, boxer shorts, socks and/or shoes were contaminated.” Plaintiff alleged that Defendants “refused to take reasonable steps to abate the problem.” Plaintiff alleged that the leaks became worse when it rained.

         The Court dismissed the second amended complaint on the ground that Plaintiff had not specifically charged each Defendant with conduct indicating that they knew of and disregarded a serious risk to Plaintiff’s health or safety. The Court noted that Plaintiff may not hold Defendants liable simply by alleging that prisoners were subjected to leaky and filthy cells, along with vague allegations that Defendants neglected their condition. Plaintiff was advised that he must allege facts indicating that each Defendant was aware of a specific harm to Plaintiff, and acted with disregard to that harm. Plaintiff was directed to file a third amended complaint that described what each defendant did, by name, to violate Plaintiff’s rights.

         In the third amended complaint, Plaintiff re-states the allegations of the original complaint, first amended complaint, and second amended complaint. Plaintiff alleges that between September and 2011 and February 2013, Defendants knew that during the rainy season that the majority of roofs “leaked badly.” (ECF No. 16, p. 4.)

         Plaintiff alleges that between January 2010 and May 2013, he had to make a plaster out of his state issued soap, with which he covered his cell walls to stop water from seeping into his cell. Plaintiff alleges that “numerous times I was awaken by my mattress, blankets and sheets being partially or fully soaked and kept on rinsing and cleaning what was wet every thirty minutes.” (Id. p. 5) Plaintiff alleges that in April of 2012, his cell leaked so much that all of his books and state issued clothing were soaked. Plaintiff (without reference to a specific date) alleges that he returned to his cell from the yard when it began to rain. Plaintiff alleges that he “washed and cleaned the puddles, walls, property, etc. . . . on ...


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