The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983. By order, filed on 3/11/08, certain of the claims/defendants were dismissed with leave to file an amended complaint. Plaintiff, having been granted an extension of time by order, filed on 4/22/08, plaintiff filed an amended complaint.
Although plaintiff had paid the filing fee in full, plaintiff was granted an opportunity to make the showing pursuant to 28 U.S.C. § 1915(a), for in forma pauperis status, so that plaintiff would not be responsible for service of process. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted, but plaintiff will not be assessed any further filing fee.
As plaintiff has been previously informed, 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In screening the original complaint, the court stated:
The complaint states a colorable claim for relief against defendants Gov. Schwarzenegger (in his official capacity only); California Department of Corrections and Rehabilitation (CDCR) Secretary James Tilton (in his official capacity only); Warden Campbell; Chaplain Barham; Associate Warden D. B. Long; Mike Valdez; Captain R. J. Robinson; Correctional Officer (C/O) Cagle; C/O Kowalzych; Appeals Coordinator Reyes, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b).
Plaintiff names some 22 defendants in this civil rights action, the gravamen of which is that he, a Native American inmate, recognized as occupying the ministerial position of "Keeper of the Sacred Pipe" or "Pipe Carrier," and as vice-chairman of the Mule Creek State Prison (MCSP) Facility-A Native American Spiritual Circle Council, has been deprived of his constitutional right to the free exercise of his religion since July 11, 2005. Complaint, pp. 6-7. Since that date, plaintiff has been deprived of tobacco to smoke his sacred pipe. Id., 6-8. Plaintiff alleges that MCSP prison officials have continuously restricted Native American religious/spiritual programs and functions without due process, and have failed to abide by their own regulations and established practices and policies in doing so. Id. at 7. Specifically, under the law prohibiting tobacco products/smoking supplies and smoking, there is a specific exemption for religious practices and purposes, which defendants have failed to adhere to. Id.
However, plaintiff conflates his colorable claims regarding the alleged deprivation of First Amendment religious exercise rights with murkier claims going back to the year 2000. Plaintiff claims that since that year, MCSP officials have held only one meeting with the elected representatives of the Native American Council and the Pipe Carrier, alleging thereby a violation of unidentified state policies or regulations. Id. Plaintiff fails therein to identify any federal constitutional right of which he is deprived by the unnamed prison officials' failure to meet with the Native American group prior to altering any religious rule or policy. Plaintiff does not state a federal due process claim by claiming that prison officials have "capriciously" failed to abide by their own rules "more and more each year since the year 2000," by restricting certain Native American spiritual programs simply because they failed to meet with the Native American Council. The court has as nearly as possible identified those defendants against whom plaintiff has stated colorable claims above. To the extent, however, that plaintiff seeks to implicate defendants for action or inaction involving his vague claims preceding the events of July, 2005, such claims and defendants are dismissed although plaintiff will be granted leave to amend.
Order, filed on 3/11/08, pp. 2-3.
In his amended complaint, plaintiff again sets forth some colorable claims against a number of defendants, this time identifying the relevant period during which he was deprived of tobacco for religious ceremonies as extending from July 6, 2005, through November, 2007. Amended Complaint (AC), pp. 7-15. In addition, plaintiff alleges that certain defendants refused to permit him time off from his job assignment to attend his religious sweatlodge services during the period of time from July, 2000 to 2002. AC, p. 16.
Plaintiff then proceeds to go much further afield, alleging instances of the purported filing of false disciplinary reports by an Officer Gandy on 3/27/02, in the form of a fraudulent CDC-115 disciplinary report against plaintiff for "theft from workplace;" also by Gandy, in the form of a subsequent CDC-128 chrono that got plaintiff removed from his "chapel clerk" position; by a defendant Starnes on 4/08/02 in the form of a CDC 128 chrono, alleging falsely that plaintiff had admitted to using the office word processor to do legal work for other inmates for pay. AC, pp. 17-18. Plaintiff's complaints about Gandy's actions resulted in retaliatory action by defendants Sgt. Starnes and Officer Rutherford, as well as unnamed others, who, on 4/08/02, allegedly rushed into plaintiff's chapel office, strip searching plaintiff with Starnes confiscating seven full floppy disks (except for one), containing plaintiff's pro se legal work on his own criminal case. Id., at 18. Among the litany of remaining allegations, plaintiff contends that he was issued a false disciplinary 115 for "misuse of state equipment"; that a defendant Martinez initiated "a campaign of adverse" retaliatory and conspiratorial actions to have plaintiff removed from his mental health, single-cell custody designation. Id., at 21. Further, on 5/03/03, defendants Brown and Warren "maliciously falsified a'confidential informant memo" wherein plaintiff's cell partner (which he evidently acquired after no longer having single cell status) supposedly claimed to have been threatened and intimidated by plaintiff. Id., at 21.
Plaintiff entangles these and other claims with those that do appear related to the gravamen of this action, that is, he alleges that between August and October of 2003, defendants Duclos and Bueno denied plaintiff Saturday sweatlodge ceremony services, as did defendant Pimentel from August 21, 2003, until September 21, 2003. Id., at 25-26. Plaintiff also contends that a defendant Baker confiscated several of plaintiff's Native American religious items on April 13, 2004. Id., at 26.
Inmates have a right to be free from the filing of false disciplinary charges in retaliation for the exercise of constitutionally protected rights. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). The Ninth Circuit treats the right to file a prison grievance as a constitutionally protected First Amendment right. Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997); see also Hines v. Gomez, 853 F. Supp. 329 (N.D. Cal. 1994) (finding that the right to utilize a prison grievance procedure is a constitutionally protected right, cited with approval in Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995)); Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (retaliation for pursing a grievance violates the right to petition government for redress of grievances as guaranteed by the First and Fourteenth Amendments); Jones v. Coughlin, 45 F.3d 677, 679-80 (2nd Cir. 1995) (right not to be subjected to false misconduct charges as retaliation for filing prison grievance); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (filing disciplinary actionable if done in retaliation for filing inmate grievances); Franco v. Kelly, 854 F.2d 584, 589 (2nd Cir. ...