The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are Defendant's Motion to Dismiss Count 1 of the Complaint (Doc. # 6) and the Report and Recommendation (Doc. # 10) filed by the Magistrate Judge.
On February 26, 2009, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing the complaint. (Doc. # 1). Plaintiff's complaint alleges two claims against Defendant: (1) free speech; and (2) freedom from cruel and unusual punishment. Id. at 3-5. Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") along with his complaint. (Doc. # 2). On April 6, 2009, the Court granted Plaintiff's Motion to Proceed IFP and performed the sua sponte screening required by the Prison Litigation Reform Act, 28 U.S.C. § 1915. (Doc. # 3).
Plaintiff alleges that he was confronted by Defendant and four other correctional officers while he was discussing a job change with two other inmates in Prison Yard "A" at Centinela State Prison. (Doc. # 1 at 3). Plaintiff alleges that Defendant "began cursing, stating 'You (mother fxxxxxx) are stupid, we are looking right at you and you want to keep drinking.'" Id. Plaintiff alleges that, in response, he "simply suggested 'If you saw who was drinking, why don't you address that person instead of disrespecting everybody.'" Id. Defendant allegedly responded "You have a big smart mouth, but are stupid." Id. Plaintiff alleges that he then told Defendant that "[Defendant] was the stupid one and that's why he had that job." Id. Plaintiff alleges that another prison official, Sergeant Centeno, told the group of inmates that "we were only going to come talk to you, but because of him (pointing at me) you are all getting stripped out." Id. However, Plaintiff alleges that Defendant only performed an unclothed body search on Plaintiff and did not search the other inmates who were standing in the yard. Id.
Plaintiff alleges that after he complied with the search, Sergeant Centeno ordered him to "cuff up" so that Defendant could handcuff him. Id. Plaintiff alleges that after he complied, Sergeant Centeno ordered Defendant to take Plaintiff to the program office. Id. Plaintiff alleges that Defendant began to walk with Plaintiff and then asked Sergeant Centeno, "To the program office?" Id. Sergeant Centeno replied "Yes." Id. Defendant asked Sergeant Centeno again "To the program office?" Id. Plaintiff alleges that he did not hear the Sergeant respond. Plaintiff alleges that Defendant asked Sergeant Centeno a third time "To the program office?" and Plaintiff said "Ya mamasela." Id.
Plaintiff alleges that Defendant looked over his shoulder and yelled "Do not strike me! Get down, get down!" and pushed Plaintiff to the ground. Id. Plaintiff alleges "I turned my face to the right so that my nose would avoid the impact" and "crossed my legs to show any witness I was not resisting." Id. Plaintiff alleges Defendant continued "grinding my face to the floor" until another prison official, Lieutenant Caldwell arrived at the scene and ordered those present to put on latex gloves because Plaintiff was bleeding from the mouth. Id. at 4. Plaintiff alleges that he was cleaned up, and after a medical evaluation, gave a videotaped statement accusing Defendant of "police brutality." Id.
Plaintiff alleges that he exhausted his administrative remedies:
First I wrote a staff complaint. It was granted in part. Not satisfied, I sent it to Sacramento 3rd level - it was denied but it was not returned to me. I was found guilty of the Rule Violation Report. On appeal, the Rule Violation Report got reissued to be reheard (3 times). On the fourth time, the charges were dismissed. I was released from Administrative Segregation after 8 months of punishment.
On July 28, 2009, Defendant filed his Motion to Dismiss Count 1 of the Complaint. (Doc. # 6). Defendant contends that Plaintiff has failed to state a First Amendment claim for freedom of speech or retaliation pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 2. Defendant contends that Plaintiff has not "specified what the protected speech is" and that none of the statements Plaintiff allegedly made qualify as protected speech. (Doc. # 6-1 at 4). Defendant contends that Plaintiff "did not put forth any facts that actually allege that [Defendant] prevented [Plaintiff] from exercising his freedom of speech." Id. Defendant contends that Plaintiff has also failed to plead the elements of a viable First Amendment retaliation claim. Id. at 5. Defendant contends that Plaintiff failed to allege any facts showing Defendant "took adverse action against Plaintiff." Id. Defendant contends that his actions, specifically strip searching Plaintiff and placing Plaintiff in handcuffs, were motivated by his suspicion that the group of inmates were drinking and his concern that Plaintiff's conduct could "lead to violence." Id. Defendant contends that he was obeying the "lawful orders of a supervising officer." Id. Defendant contends Plaintiff has failed to allege facts which would show the "absence of legitimate correctional goals." Id. Defendant contends that he was enforcing California Code of Regulations Title 15, §§ 3004, 3005, and 3016 and that the Court should therefore dismiss Plaintiff's claim.
On August 24, 2009, Plaintiff filed his response in opposition to Defendant's motion. (Doc. # 8). Plaintiff contends that he alleged that his statements were protected by the First Amendment. Id. at 2. Plaintiff contends that being strip searched, handcuffed, and subject to a false accusation of assaulting a correctional officer constitute retaliation, "freezing the plaintiff's right to free speech." Id. Plaintiff contends that Defendant's assault upon him was "clearly retaliating and punishing Plaintiff for correcting Defendant on how to do his job." Id. Plaintiff contends that the fact that Defendant was ordered to "search and escort the plaintiff does not justify the Unethical and Criminal behavior Defendant RAMIREZ engaged in." Id. Plaintiff contends that he plead all of the elements of a claim for retaliation pursuant to Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Respondent did not file a reply.
On November 12, 2009, the Magistrate Judge issued her Report and Recommendation ("R&R") recommending that this Court grant the motion and dismiss count 1 of the complaint with prejudice. (Doc. # 10). The R&R concluded that Plaintiff "does not allege that he engaged in protected speech nor does he allege that Defendant prohibited him from exercising his free speech rights." Id. at 7. The R&R concluded that even if Plaintiff did allege that his speech was protected and that he was prevented from exercising his free speech rights, "the derogatory and challenging remarks Plaintiff directed toward Defendant cannot properly be characterized as protected speech." Id. The R&R concluded that "protests and complaints that involve a direct confrontation with prison officials" as opposed to a written grievance "enjoy limited constitutional protection because such behavior may present the danger of a disturbance." Id. at 7-8. The R&R concludes that the California Code of Regulations Title 15, § 3004(b) prohibited Plaintiff's statement because it displayed disrespect and risked "disrupt[ing] orderly operations within the institution." Id. at 8 (citing Cal. Code Regs. tit. 15, § 3004(b)). The R&R concluded that the risk was "especially ...