The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO FILE SECOND AMENDED COMPLAINT OR FILE NOTICE OF VOLUNTARY DISMISSAL WITHIN THIRTY DAYS
Plaintiff Michael Reed Dorrough ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 7, 2008, Plaintiff filed his original complaint. (Doc. 1.) On February 3, 2009, the Court ordered dismissal of Plaintiff's original complaint with leave to amend. (Doc. 10.) On March 6, 2009, Plaintiff filed his first amended complaint. (Doc. 11.) Plaintiff's complaint is presently before the Court for screening.
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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
B. Summary of Plaintiff's Complaint
Plaintiff is currently incarcerated at Corcoran State Prison in Corcoran, California. Plaintiff was formerly imprisoned at California Correctional Institution ("CCI") in Tehachapi, California, where the acts he complains of occurred. Plaintiff names as defendants: Deputy Warden F. Gonzalez; Associate Warden M. Carrasco; and classification and parole representative V. McLaughlin.
Plaintiff alleges the following. In May 2007, Plaintiff was transferred from the Security Housing Unit ("SHU") of CCI to the SHU at Corcoran State Prison. (Doc. 11, p. 3.) The institutional classification committee ("ICC") at CCI, comprised of defendants M. Carrasco and V. McLaughlin, recommended the transfer. (Id.) The ICC recommended transfer because of Plaintiff's validation as a prison gang member and Plaintiff was a "program failure." (Id.) Plaintiff alleges that this transfer was in violation of a settlement agreement between Plaintiff and the California Department of Corrections and Rehabilitation ("CDCR") reached in 2002. (Id., p. 4:1-4.) Plaintiff alleges a violation of the Due Process Clause of the Fourteenth Amendment. (Id.)
Plaintiff seeks injunctive and declaratory relief, compensatory and punitive damages, appointment of counsel, trial by jury, and transfer to the SHU at CSP-Lancaster. (Id., p. 3.)
1. Settlement Agreement and ...