The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On February 1, 2010, Robert Trevino ("plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 28 U.S.C. § 1983 ("Complaint").
In accordance with the provisions governing in forma pauperis proceedings, the Court must screen the Complaint before ordering service to determine whether the action:
(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). This screening is governed by the following standards:
A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke 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)).
Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide "more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the "speculative level," Twombly, 550 U.S. at 555, or the merely possible or conceivable. Id. at 557, 570.
Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents enough facts "to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, ___U.S. ___, 129 S.Ct. 1937, 1949 (2009). This standard is not a probability requirement, but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts that are merely consistent with liability stops short of the line between possibility and plausibility. Id.
In a pro se civil rights case, the complaint must be construed liberally to afford plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
After careful review and consideration of the Complaint under the relevant standards and for the reasons discussed below, the Court finds that plaintiff has failed to state a claim on which relief may be granted and ORDERS theComplaint DISMISSED WITH LEAVE TO AMEND.
Plaintiff alleges that, on or about December 30, 2009, he filed an emergency administrative appeal concerning his "illegal detention and/or false imprisonment" in Administrative Segregation ("Ad-Seg") at the California Men's Colony-East ("CMC-East") in San Luis Obispo, California. (Complaint at 2.) It appears that, in his administrative appeal, Plaintiff claims he was transferred from Pleasant Valley State Prison approximately seven months previously and wrongfully placed in Ad-Seg at CMC-East, rather than being transferred to the general population at Kern Valley State Prison ("KVSP"). (Complaint at 3C.) He sought an immediate transfer to KVSP. (Id.)
Plaintiff appears to allege seven separate claims. First, he claims that Appeals Coordinator D. Engler acted with deliberate indifference in violation of the Eighth Amendment by refusing to adjudicate his administrative appeal on an expedited basis. (Complaint at 3A-D.) Second, plaintiff claims that Engler violated plaintiff's Fourteenth Amendment right to due process by refusing to adjudicate his administrative appeal on an expedited basis. (Complaint at 4A-B.) Third, plaintiff claims that unnamed correctional officers failed to return his legal materials. (Complaint at 4B.) Fourth, plaintiff claims that Engler failed to adjudicate the administrative appeals in order to retaliate against plaintiff for having filed an earlier civil rights action in the Eastern District of California. (Complaint at 2A, 4A.) Fifth, plaintiff claims that Correctional Officer J. Neighbors used excessive force against plaintiff while he was handcuffed and returning from the shower, causing him to suffer a head injury. (Complaint at 5B-C.) Sixth, plaintiff claims that, when he filed an administrative appeal against Neighbors for the excessive force incident, Engler failed to act on the appeal because he filed the appeal against Neighbors. (Complaint at 5C.) Finally, plaintiff claims that other unnamed officers have made "death threats" against plaintiff because he filed the appeal against Neighbors. (Id.)
Plaintiff seeks injunctive relief and compensatory and punitive ...