The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE ANY CLAIMS UNDER SECTION 1983 (Doc. 6) OBJECTIONS DUE WITHIN THIRTY DAYS
I. Findings and Recommendations Following Screening of Complaint
Plaintiff Lonnie Lee Manuel, a state prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 9, 2009.
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 must 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
1. Summary of Allegations
Plaintiff is incarcerated at Avenal State Prison (ASP), and alleges claims against ASP Counselors T. Salgado and J. Handorf, and ASP Captain D. A. Clendaniel for denial of due process, deliberate indifference, defamation, and negligence, in violation of his constitutional rights.
Plaintiff's claims arise from the assignment of an R suffix, which denotes a history of sex offenses, to his central prison file. Plaintiff alleges that the R suffix was assigned because he was arrested for sexual crimes, but he was never prosecuted and DNA testing conducted at the time of his arrest proved he was not responsible. As a result of the imposition of the R suffix, Plaintiff is ineligible for Level I (minimum security) custody.
Plaintiff's exhibits establish that the R suffix was assigned on August 18, 2004, by an Institutional Classification Committee at Wasco State Prison. (Doc. 6, court record p. 21.) Plaintiff's claims against Defendants Salgado and Handorf arise from their failure to "acknowledge" a 2006 CDCR memorandum and a finding by the District Attorney's Office, and Plaintiff's claims against Defendant Clendaniel arise from his presence at Plaintiff's last classification hearing and his supervisory position over Salgado and Handorf. Plaintiff claims that Defendants should have removed the R suffix based on the memo and the District Attorney's letter but failed to do so.
Plaintiff submitted page eight of what he describes as a memo. The document is incomplete, and the page the Court has before it sets forth six factors classification committees should take into consideration when reviewing an inmate for the "'VIO' administrative determinant." (Doc. 1, court record p. 11.) An inmate found guilty in a prison disciplinary proceeding of a Division A-1 or A-2 offense that is equivalent to a Penal Code section 667.5(c) offense shall be reviewed for the "VIO" administrative determinant.*fn1 (Id.) Plaintiff fails to clearly allege if or how these six factors apply in his situation, but in that Plaintiff was sentenced to prison in 2002, Plaintiff may have been found guilty of a charge in a prison disciplinary hearing and thereafter reviewed for the assignment of an R suffix. (Doc. 1, court record p. 20.)
The second document referenced, the District Attorney's "finding" described by Plaintiff, is a letter, dated September 24, 2008, in which Plaintiff is informed that there are no open cases against Plaintiff, sent in response to Plaintiff's Penal Code section 1381 demand.*fn2 (Id., p. 12.)
Plaintiff's contention is that Defendants' awareness of these two documents should have caused them to grant his request to remove the R suffix from his file, and that their failure to do so violated his right to due process, and ...