United States District Court, E.D. California
FIRST SCREENING ORDER ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 1.)
THIRTY-DAY DEADLINE TO FILE AMENDED COMPLAINT
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Allen (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. On August 31, 2018, Plaintiff filed the Complaint
commencing this action, which is now before the court for
screening. 28 U.S.C. § 1915. (ECF No. 1.)
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).
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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(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). To state a viable claim, 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 678-79;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). While factual allegations are accepted as true,
legal conclusions are not. Id. The mere possibility
of misconduct falls short of meeting this plausibility
SUMMARY OF COMPLAINT
is presently incarcerated at Kern Valley State Prison (KVSP)
in Delano, California, where the events in the Complaint
allegedly occurred. Plaintiff names as defendants
Correctional Officer (C/O) V. Bentacourt, C/O R. Valdovinos,
C/O S. Ochoa, and Lieutenant Sandaval
allegations follow. On January 23, 2018, about 4:30 p.m.,
Plaintiff's cell mate, Burton, used the toilet in their
cell and the toilet would not flush. When Plaintiff came out
for PM medications he told the officers in the tower about
the broken toilet. John Doe tower officer (not a defendant)
said he would let C/O Bentacourt know as soon as they were
finished packing another inmate's property. Officers
Betancourt and Valdovinos were packing inmate Johnson's
property. On his way back from PM medications Plaintiff told
defendant Valdovinos that his toilet wouldn't work, and
Valdovinos said to let them finish with the packing.
Plaintiff went back to his cell.
6:00 p.m., Plaintiff tried to flush the toilet again and the
human waste overflowed all over his floor. Plaintiff called
another inmate, Robert, and asked him to call the tower and
tell them what happened and that Plaintiff needs a mop.
Robert opened the cell door and Plaintiff and his cell mate
stepped out. The tower officer told Plaintiff that as soon as
the officers come back he would let them know. Plaintiff
asked the tower officer if Plaintiff and his cell mate could
move to Cell #113. The tower officer said this ain't his
building and he would let the building C/Os know.
and his cell mate stood in the day room for about an hour.
When C/O Valdovinos came back he was passing out mail.
Plaintiff asked him about moving to Cell #113. Instead,
Valdovinos tried to move them to Cell #206. Plaintiff told
him that he can't move to the top tier due to his back
and showed him the chrono.
7:52 p.m., Plaintiff and his cell mate went to the office and
C/O Bentacourt gave a mop to the cell mate. Plaintiff asked
C/O Valdovinos again if they could move to Cell #113 and he
said that Cell #113 is flagged, but he would put in a work
order. Valdovinos said they would fix it in the morning
because Plaintiff is in an ADA cell.
next day, on January 24, 2018, C/O Valdovinos was passing out
mail. When he got to Plaintiff's door he asked if the
toilet was fixed. Plaintiff said no and told him he
couldn't breathe in the cell. Plaintiff personally showed
him the human waste and toilet paper that was in the toilet.
Later, C/O Bentacourt came by closing the food slots and
asked Plaintiff if they fixed the toilet. Plaintiff said no,
showed him the toilet and its contents and told him this is a
violation of Plaintiff's rights.
pill call, Plaintiff told a John Doe officer (not a
defendant) about the toilet and asked if Plaintiff and his
cell mate could move to Cell #113. The officer said yes.
About 20 minutes later the officer came back and told
Plaintiff they couldn't move to Cell #113 because the
inmate who was in that cell is out to the hospital and they
could only give up that cell in an emergency. Plaintiff