The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks redress for alleged civil rights violations pursuant to his Second Amended Complaint filed October 16, 2009 (Docket 16). Plaintiff is a prisoner at California State Prison-Kern Valley, in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), but the allegations of his complaint are premised on his prior incarceration at California State Prison-Sacramento.
Plaintiff's initial complaint was dismissed with leave to amend on June 5, 2009. On August 3, 2009, plaintiff filed his Amended Complaint (Docket 10), which this court found stated a claim against defendant Bishop (Correctional Sergeant), but not defendants Wenkler (Correctional Officer), Leiber (Correctional Captain), or Flint (Correctional Lieutenant). See Order filed September 14, 2009 (Docket 12). Bishop has now executed and filed a waiver of service (Docket No. 17). Plaintiff was granted leave to file a Second Amended Complaint, which the court now reviews. Plaintiff again names as defendants Bishop, Wenkler, and Lieber, as well as CDCR, but not Flint.
As previously explained, this 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, 550 U.S. 544, 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). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
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, 96 S.Ct. 1848 (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, 89 S.Ct. 1843 (1969).
The Second Amended Complaint ("SAC"), premised on plaintiff's incarceration at California State Prison-Sacramento ("CSP-S"), alleges that defendants -- CDCR, and Correctional Sergeant B. Bishop, Correctional Captain D. Lieber, and Correctional Officer R. Wenkler, each acting in their individual and official capacities -- engaged in a "campaign of retaliatory harassment" against plaintiff for filing grievances against Wenkler -- specifically, one grievance filed by plaintiff against Wenkler that plaintiff was persuaded to withdraw, and an inmate class action against Wenkler in which plaintiff participated. Plaintiff alleges violation of his civil rights under 42 U.S.C. § 1983, pursuant to the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as claims under the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act of 1973 ("Section 504"), and California Government Code Section 11135. For the reasons discussed below, plaintiff states claims only under Section 1983, against Bishop and Wenkler, but will not be given further leave to amend to restate his allegations against Lieber.
Several general observations require note. First, a continuing problem persists in the Second Amended Complaint -- plaintiff's legal claims are only summarily set forth in the preface and conclusion of the complaint, without linkage to his factual allegations. See McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) (plaintiff must link his factual allegations to his legal claims). However, viewing plaintiff's Second Amended Complaint as a whole, it is clear that plaintiff's overarching claim is that each defendant either directly retaliated, or created the opportunity for others to retaliate, against plaintiff for exercising his First Amendment right to file prison grievances. It is plaintiff's contention that Wenkler not only directly retaliated against plaintiff, but Bishop acted in support of Wenkler and thus as further retaliation against plaintiff, in violation of the Eighth Amendment; further, that their common supervisor, Lieber, condoned/made possible/covered up the allegedly illegal conduct of Wenkler and Bishop. While the court has liberally construed plaintiff's claims against Bishop and Wenkler, the failure of plaintiff to articulate specific acts by Lieber in support of his allegations requires dismissal of this defendant.
Second, no further opportunity to amend the complaint is also warranted by the SAC's singular allegation of racial discrimination ("Defendant Wenkler has established an obvious pattern and practice of mistreatment towards african american inmates," SAC, at 11), which plaintiff alleged in more detail when administratively exhausting his claims (see, e.g., Docket No. 16 at 42 ("every inmate who has conflict with Wenkler is black . . . it is clear that this is a racial hate issue going on")). " 'To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.' " Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998)). "Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status." Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)) (emphasis in original). Plaintiff has had sufficient opportunity to state a plausible racial discrimination claims and will not be granted further opportunity.
Third, while plaintiff seeks both damages and injunctive relief, plaintiff's transfer from California State Prison-Sacramento renders moot his request for injunctive relief absent evidence (not provided) that he will be transferred back. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (transfer to another prison by prisoner challenging conditions of confinement renders moot any request for injunctive relief absent evidence of reasonable expectation that prisoner will be transferred back); see also, Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975) (applying principle to both injunctive and declaratory relief).
Finally, the Sixth Amendment (which secures the rights and procedures accorded criminal defendants) is inapposite to all of plaintiff's claims, and will be dismissed.
Pursuant to his "Claim One," SAC at 4-7, plaintiff alleges that defendants CDCR and Correctional Captain D. Lieber promoted an informal policy ("code of silence") of ignoring CDCR's written policy requiring adherence to the duties and obligations set forth in its Correctional Officer Job Specification, thus enabling Wenkler to harass plaintiff in retaliation for filing grievances against him. SAC at 4. The SAC alleges that plaintiff filed a grievance against Wenkler, but was persuaded by the interviewing officer (Lt. Flint) to withdraw his grievance upon the promise that Wenkler would become more respectful. However, Wenkler allegedly became more abusive and engaged in a "'campaign of retaliatory harassment' toward plaintiff" for filing the grievance, which included making false reports about plaintiff to defendant Bishop. These allegedly false reports included that another inmate engaged in unauthorized photocopying on plaintiff's behalf, which resulted in punishing plaintiff with a week-long search of his cell and denial of telephone access for a month. Additional allegations of retaliatory conduct by Wenkler are set forth in plaintiff's Claim Two (e.g., that Wenkler falsely stated to Bishop that plaintiff was "roaming the yard," resulting in Bishop placing plaintiff in a holding cage), and Claim Three (e.g., that Wenkler falsely stated to Bishop that he felt threatened by plaintiff, resulting in Bishop again placing plaintiff in a holding cage).
Plaintiff contends that "[d]efendant Leiber intentionally ignored and disregarded various complaint[s], facts, and information from subordinates, inmates, and citizens concerning the violation and disregard of correctional duties by Defendant Wenkler, and failed and/or refused to rectify, abolish, and prohibit the defective policy which authorized and permitted Defendant Wenkler to violate correctional duties to intentionally harass, vex, and annoy inmates, including Plaintiff, for the filing and participating in the filing of inmate grievances." SAC, at 7.
Plaintiff's allegations fail to state a claim against CDCR. With the exception of prospective injunctive relief, which plaintiff cannot pursue (see discussion, supra), the California Department of Corrections and Rehabilitation, a state agency, is immune from a Section 1983 suit under the Eleventh Amendment. Pennhurst State School and Hospital v. Halderman, 465 ...