Johnson v. Barajas

          ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIM THIRTY-DAY DEADLINE

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Vance Edward Johnson ("Plaintiff"), a state prisoner proceeding pro se, filed this action on October 29, 2014. On August 4, 2015, the Court screened the complaint and determined Plaintiff had failed to state a cognizable claim. Plaintiff was granted an opportunity to file an amended complaint. On August 21, 2015, Plaintiff filed a First Amended Complaint. Plaintiff names Correctional Officer M. Barajas as Defendant.

         A. SCREENING STANDARD

         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 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

         Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present 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. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         B. ALLEGATIONS IN COMPLAINT

         Plaintiff is currently housed at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events at issue occurred.

         Plaintiff has a medical history of internal, irreparable, physical injuries, with restricted movement. He is on restriction from bending, twisting, and lifting anything over 20 pounds.

         On March 19, 2014, after returning from being out-to-court, Plaintiff was placed in an orientation cell. Plaintiff was assigned to Cell C5-131 by Defendant Barajas. The cell had no electrical power. Plaintiff states the toilet requires electrical power to flush. He was given a bucket to fill up with water to flush it. Plaintiff states the weather condition was hot and he was on heat medication. He could not utilize his fan to keep cool.

         Plaintiff alleges he continually asked Defendant Barajas for a cell move to one of the other 34 empty cells which had electrical power, but she just laughed and said, "No, I already put in a work order to turn on the electric power to that cell." According to the obtained work order, however, Barajas never put in a work order like she said. Also, the work order showed Plaintiff was without power for twelve days from March 19, 2014, to April 2, 2014. Inmate porters were sent to Barajas to ask for a cell move, but they said, "She's not going to move you." While in orientation, inmates do not receive yard or dayroom time, and they receive cell feed. Plaintiff began to feel sick and experienced difficulty breathing. As a result of being in a cell without power, Plaintiff suffered from severe headaches, involuntary muscle contractions, nausea, body aches, dehydration, heat cramps, and weakness.

         On March 21, 2014, Defendant Barajas allowed a Hispanic/Mexican inmate a convenience move from an operational cell to another cell; however, Plaintiff's requested "emergency cell move" was denied.

         Plaintiff is seeking compensatory damages in the amount of $5, 000.00, and punitive damages in the amount of $5, 000.00.

         C. ...