Rounds v. Woodford

MEMORANDUM ** California state prisoner George Dennis Rounds, Jr., appeals pro se from the dis [684] triet court’s dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim for relief. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we vacate and remand. The district court correctly held that allegations of overcrowding without more do not state a claim under the Eighth Amendment. See Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir.1982). A plaintiff may, however, state a cognizable claim where he or she alleges that overcrowding results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir.1987) (reversing district court’s dismissal of claim that overcrowding caused increased stress, tension and communicable disease among inmate population); see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (affirming that an Eighth Amendment violation may occur as a result of overcrowded prison conditions causing increased violence, tension and psychiatric problems). Given the very low threshold requirements of 28 U.S.C. § 1915, the claims appear to be colorable for the purposes of that statute. We express no opinion whether this case would survive a motion for dismissal under Fed.R.Civ.P. 12(b)(6). We deny both parties’ requests for judicial notice. We deny Rounds’s motion for appointment of counsel. VACATED and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.