United States District Court, E.D. California
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.
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).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.
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).
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).
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.
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.
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.
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.
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.)
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 ...