ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He alleges that he sought to enroll in a self-help program called the Offender Employment Consortium (OEC), but that defendant Herrerra refused to permit plaintiff to enroll because his custody level was Close B. Complaint (Compl.) ¶¶ 1-2.*fn1 Plaintiff filed a grievance, which pointed out he had been working in the building where the program was held for four years. Id. ¶ 3. Because he had already been cleared for "C" side custody, his grievance was partially granted and he was able to enroll in the program. Id. ¶ 4.
At the end of the program, plaintiff returned to his job at the book bindery. Id. ¶ 6. Shortly after that, however, defendants Miles, the Custody Captain, and Herrera removed plaintiff from his job assignment because of his custody level and escape history. Id. ¶ 10. Nevertheless, the Unit Classification Committee (UCC) cleared him for a gate pass and for reassignment to his job at the book binder. Id. ¶¶ 13, 15, 16. When neither the pass nor the job reassignment materialized, he appeared before the Institutional Classification Committee (ICC). Defendant Singh*fn2 denied plaintiff's request for a gate pass because he was a life-term inmate with an escape history and because he does not have a parole date and so is deemed not within twenty years of a projected release date. Singh said that all life prisoners were subject to this policy. Id. ¶¶ 27, 29-30. Defendant Cappel told plaintiff if he pursued the matter, inmates who lost their jobs would blame plaintiff. Id. ¶ 31.
Plaintiff alleges that these actions were taken because he had filed a grievance against defendant Herrera and a lawsuit against the prison. Id. ¶¶ 32-33, 47-48, 64, 75. He also alleges that the actions were not supported by a valid penological purpose and were exaggerated responses to concerns. Id. ¶¶ 42, 57, 78.
Defendants have filed a motion to dismiss, arguing that the allegations of the complaint and the materials attached to the complaint show there was a legitimate penological interest for the defendants' refusal to reissue plaintiff a gate pass and thus permit him to return to work and that the claim against defendant Herrera fails on causation grounds. Motion to Dismiss, Memorandum of Points and Authorities (MTD) at 4-5.
Plaintiff has filed a motion to amend his complaint.
I. Standards For A Motion To Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim 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, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Generally, a court must look no further than the face of the complaint in evaluating a motion to dismiss, but when a plaintiff has attached exhibits to the complaint, the court may consider them in deciding the motion. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); Schneider v. California Department of Corrections, 151 F.3d 1194, 1197 (9th Cir. 1998). Accordingly, the court will consider the exhibits to the complaint, but will not consider the additional materials plaintiff has submitted with his opposition.
Retaliatory actions taken against a prisoner for exercising his First Amendment rights violate the constitution whether or not the underlying misconduct would establish a constitutional violation. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
Within the prison context, 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.
Id. An allegation of harm, rather than of chill, may be a sufficient basis for a claim of retaliation. Id. at 569-70; Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.1989). In Rizzo v. Dawson, 778 F.2d 527, 530-32 (9th Cir.1985), the court found that plaintiff stated a retaliation claim when he alleged he was removed from a vocational class because of his efforts as a jailhouse lawyer. In this case, plaintiff alleges that the defendants denied him a gate pass and thus a return to his prison job in retaliation for a grievance against defendant Herrera, or for a lawsuit against the prison, or both, and that these actions were taken without a legitimate penological purpose and were exaggerated responses to concerns.
Defendants contend that the exhibits to the complaint show that no Close B inmate with a history of escape or without a parole date or both was given a gate pass and that plaintiff has pleaded himself out of a claim. MTD at 5 (pointing to plaintiff's exhibits 1, 3). See Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001), as amended, 275 F.3d 1187 (9th Cir. 2001). Although a plaintiff may indeed plead himself out of a claim ...