The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Third Amended Complaint (Dkt. #24)
This matter is before the Court on Plaintiff's Third Amended Complaint (Dkt. #24), filed on March 12, 2009.*fn1
On July 20, 2007, Plaintiff filed a Petition for Writ of Habeas Corpus in the Northern District of California. (Dkt. #1) while he was incarcerated at Mule Creek State Prison in Ione, California. After stating that Mule Creek State Prison is located in the Eastern District of California, the District Court for the Northern District of California transferred Plaintiff's case to the Eastern District, noting that the district of confinement is the preferable forum for prisoner lawsuits involving the manner in which a sentence is being executed. (Dkt. #1 at 1-2, citing Habeas L.R. 2254-3(a); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989)).
Plaintiff then filed an Amended Petition for Writ of Habeas Corpus (Dkt. #6) on October 10, 2007, which was subsequently dismissed with leave to amend due to Plaintiff's failure to state any cognizable claim for relief pursuant to 28 U.S.C. § 2254. (Dkt. #10). The Court also analyzed Plaintiff's Amended Petition for Writ of Habeas Corpus (Dkt. #6) to the extent that it was intended as a civil rights complaint. (Dkt. #10). In his petition, Plaintiff challenged the conditions of confinement at the Mule Creek State Prison, alleging deliberate indifference in providing competent medical care and treatment for Plaintiff's illness. (Dkt. #6). The Court dismissed Plaintiff's petition for failure to state a proper claim under § 1983 because it did not allege "acts or omissions evidencing identified defendants knew of and disregarded Plaintiff's serious medical needs". (Dkt. #10 at 2 citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976)).
Plaintiff was given leave to file a second amended complaint (Dkt. #10), which he filed on July 10, 2008. (Dkt. #17). In his Second Amended Complaint, Plaintiff alleged that Defendants, as state actors, violated his Eighth Amendment rights through deliberate indifference to his medical needs and their failure to provide adequate medical care for his Hepatitis C. (Id.) Plaintiff alleged that he was diagnosed with Hepatitis C on May 25, 2006 and that defendant prison officials and prison medical staff refused to perform an immediate liver biopsy in June 2006 to discover if Plaintiff had liver damage. (Id.) In addition, Plaintiff alleged that Defendants Williams and Akintola refused to allow Plaintiff to see additional physicians at a hospital where a liver biopsy could be performed. (Id.).
Finally, Plaintiff alleged that guards at the Mule Creek State Prison regularly engage in conspiracies by obstructing access to various physicians and specialists and that certain prison guards have obstructed his access in retaliation as a result of Plaintiff filing complaints against them.
The Court found the allegations in Plaintiff's Second Amended Complaint (Dkt. #17), "did not state a viable cause of action against Defendants under the Eighth Amendment," because Plaintiff simply restated "the same facts as Plaintiff's Amended Petition for Writ of Habeas Corpus (Dkt. #6) and offered no other relevant facts to support his claims. (Dkt. #21). The Court dismissed Plaintiff's Second Amended Complaint (Dkt. #17), with leave to file an amended complaint that sufficiently alleges a claim against Defendants. On March 12, 2009, Plaintiff filed his Third Amended Complaint (Dkt. #24) and the Court will now proceed with the screening of the Plaintiff's Third Amended Complaint (Id.) pursuant to 28 U.S.C. §1915A.
In his Third Amended Complaint (Dkt. #24), Plaintiff resubmitted, almost verbatim, his Second Amended Complaint (Dkt. #17). Plaintiff alleges no additional facts in the Third Amended Complaint. He does, however, include additional section 1983 claims based on previously alleged facts. Plaintiff now alleges two claims for violations of his civil rights: 1) violation of his First Amendment rights when prison officials and medical staff allegedly threatened to transfer him to another prison if he continued with the present lawsuit and 2) violation of his Fourteenth Amendment right to substantive due process*fn2 and Eighth Amendment protection against cruel and unusual punishment based on the prison officials and medical staff's denying Plaintiff's request for an immediate liver biopsy.
Plaintiff alleges that prison officials and medical personnel, in their official state capacity, violated his First Amendment rights when they allegedly threatened to transfer him to another prison if he continued to pursue litigation naming them as Defendants. Plaintiff does not, however, allege that actual retaliation occurred. "A prisoner suing prison officials under [§] 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). A prisoner must demonstrate that his First Amendment rights were actually chilled by the retaliatory action. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000). Plaintiff has failed to allege that his First Amendment rights have been chilled. Indeed, he has now ...