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Allen v. Bentacourt

United States District Court, E.D. California

July 24, 2019

KEVIN ALLEN, Plaintiff,
v.
V. BENTACOURT, et al., Defendants.

          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

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Kevin 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.)

         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 (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 standard. Id.

         III. SUMMARY OF COMPLAINT

         Plaintiff 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 (“Defendants”).

         Plaintiff's 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.

         About 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.

         Plaintiff 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.

         About 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.

         The 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.

         At AM 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 ...


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