The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction under to 28 U.S.C. § 636(c)(1). Plaintiff filed the action on January 26, 2009.
On April 8, 2009, an order was entered granting Plaintiff's motion for leave to file an amended complaint. Plaintiff did not file an amended complaint within the allotted time, and on June 19, 2008, an order was entered directing Plaintiff to show cause why this action should not be dismissed for failure to prosecute. On June 30, 2009, Plaintiff filed a response setting forth allegations regarding the conditions of his confinement and attaching copies of inmate grievances. In an August 27, 2009, order the court advised Plaintiff that additional allegations had to be set forth, if at all, in an amended complaint. The court discharged the order to show cause and granted Plaintiff thirty days to file an amended complaint. Plaintiff was advised that if he failed to file an amended complaint, the court would proceed with and screen the original complaint.
On August 26, 2009, Plaintiff filed a document styled as a notice of appeal. It did not specify what order was being appealed. On October 22, 2009, the U.S. Court of Appeals for the Ninth Circuit dismissed the appeal for lack of jurisdiction. On November 13, 2009, this court received the mandate from the Ninth Circuit. To date, Plaintiff has not filed an amended complaint. The court therefore addresses the original complaint.
The Court is required to screen complaints brought by prisoners when the complaint seeks relief against a governmental entity or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the 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).
Except in limited circumstances, none of which applies to a section 1983 action such as this, Rule 8(a)'s simplified pleading standard applies to all civil actions . Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Under 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 is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the R. J. Donovan Correctional Facility in San Diego. Plaintiff names as the sole defendant in this action Derral G. Adams, the Warden at California State Prison (CSP) Corcoran. In section III B of the complaint, Plaintiff lists as additional defendants "other guards, do not know names." Plaintiff's statement of claim, in its entirety, follows:
Plaintiff was put in SHU for ten months and CSP suppose release Lau to RJD Donovan State Prison on Oct 25, 2008, until now the Warden still keeping me in 24 hours isolated lock up confinement, let me suffering emotional and physically injury, violating my civil right by Warden Adams. (Compl., ¶ IV.)Plaintiff seeks to be released to RJ Donovan Correctional Facility, and damages for "wrongful confinement" in the Security Housing Unit (SHU). (Compl, ¶ V.)
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Liberty interests may arise from the Due Process clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). The Due Process Clause itself does not confer on inmates a liberty interest in being confined in the general prison population instead of administrative segregation. See Hewitt, 459 U.S. at 466-68. With respect to liberty interests arising from state law, the existence of a liberty interest created by prison regulation is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 ...