The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN 30 DAYS (Doc. 1)
Plaintiff Cornelius V. Lee ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at Pleasant Valley State Prison in Coalinga, California ("PVSP") at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under the First, Fourth, Eighth and Fourteenth Amendments of the U.S. Constitution. Plaintiff also brings state law claims. Plaintiff names L. Wilkinson ("Supervisor Free Cook"), G. Chavez (correctional officer), Gonzales (correctional officer), John Doe One (correctional officer), R. Castellanoz ("Supervisor Free Cook"), F. Shelby (correctional sergeant), Mathew Cate (director of corrections), and James Yates (warden, PVSP) as defendants. For the reasons set forth below, Plaintiff is ordered either to notify the Court of his willingness to proceed on the claims found to be cognizable in this order, or to file an amended complaint that cures the deficiencies in the non-cognizable claims identified in this order.
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. P. 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. P. 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. 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)).
Plaintiff alleges that he experiences discrimination due to his homosexuality in violation of his First, Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff alleges that staff and inmates began to harass Plaintiff after they learned that he was gay. Plaintiff held a job working in the prison kitchen and Defendant Wilkinson allegedly told Plaintiff that "there will not be any of [his] kind working in the Kitchen". After that incident, Plaintiff claims that kitchen staff began fabricating ways to get rid of Plaintiff.
On February 21, 2008, Plaintiff was accused of taking office supplies and was subjected to a "close body search". Plaintiff complains that the search took place in front of two female cooks.*fn1 After the search, Plaintiff's living quarters were searched and his entire cell was trashed. On February 25, 2008, Plaintiff reported to work and was told by Defendant Castellanoz to move his desk by the door because the "Correctional Drive[r]s needed space. Correctional Driver Escobar told Plaintiff "I don't like to be around Gay people or people that are housed with Gays." (Compl. 8.)
On February 26, 2008, Plaintiff was interviewed by Defendant Castellanoz. Plaintiff was told that he would give Plaintiff one week to find another job because Plaintiff was having problems with his staff. On February 27, 2008, Plaintiff filed an inmate grievance because he was being discriminated against and harassed due to his homosexuality. On March 3, 2008, Plaintiff was interviewed by Defendant Castellanoz and Defendant Shelby. Plaintiff was told that he was being terminated because he was taking office supplies and because he was having problems with the staff. Plaintiff claims that these accusations were fabricated in order to justify his termination.
A. First Amendment Claims
Plaintiff claims that Defendants retaliated against him for filing inmate grievances by terminating him from his job. In the prison context, allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "[A] viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).
Plaintiff alleges that he was terminated from his job in retaliation for filing a grievance. Although the Court is obligated to accept Plaintiff's factual allegations as true at this stage in litigation, the Court is not obligated to accept as true Plaintiff's legal conclusion that his termination constituted retaliation. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). Plaintiff's factual allegations do not support the conclusion that he was terminated from his job because he exercised his right to file inmate grievances. Plaintiff was told on February 26 that he would have one week to find a new job before he would be unassigned. Plaintiff filed an inmate grievance on February 27. Plaintiff was told he was going to be terminated on March 3. The facts suggest that the decision to terminate Plaintiff was made before he filed an inmate grievance, contradicting Plaintiff's conclusion that his termination was in retaliation for the grievance that he filed. Plaintiff fails to state a cognizable claim for retaliation.
2. Freedom of Expression/Association
Plaintiff claims that Defendants interfered with his rights to free expression and free association under the First Amendment. "[A] prisoner inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). A regulation that impinges on First Amendment rights "is ...