The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON RETALIATION CLAIM, AND IIED AND EQUITABLE RELIEF CLAIMS BE DISMISSED (Doc. 25) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Second Amended Complaint
Plaintiff Kevin E. Fields, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 21, 2007. Plaintiff filed a first amended complaint as a matter of right on March 27, 2009, and on May 15, 2009, the Court found that Plaintiff's amended complaint stated a cognizable claim for relief against Defendant Velasco but stated no claims against the other three defendants. The Court dismissed the amended complaint, with leave to amend, and notified Plaintiff that he had the option of proceeding on the cognizable claim in the amended complaint. After initially opting not to amend and to proceed on his cognizable claim, Plaintiff filed a second amended complaint on June 10, 2009.
II. Screening Requirement
The 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). "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).
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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
Plaintiff, who is housed at California State Prison-Corcoran, brings this action against Correctional Officer J. M. Velasco and Correctional Sergeant L. Phillips. Plaintiff alleges that Defendants retaliated against him in violation of the First Amendment of the United States Constitution, and committed the tort of intentional infliction of emotional distress under California law. Plaintiff seeks damages, declaratory relief, and injunctive relief.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "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." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff alleges that on June 18, 2004, in retaliation against him for making verbal and written complaints against prison staff and for filing lawsuits against prison staff, Defendant Velasco entered Plaintiff's cell while he was on the exercise yard; broke the volume and main menu buttons on his television; took his unaltered cable; and removed the manilla envelopes containing his legal material from his locker, confiscated the declarations, and mixed the rest of the material up, leaving it strewn on his bunk.
After his verbal requests to speak with the unit sergeant failed, Plaintiff withheld his dinner tray that evening in order to cause a sergeant to come to his cell. When Defendant Phillips arrived, Plaintiff complained about Defendant Velasco's action and demanded that his declarations and unaltered cable be returned. Defendant Phillips refused and placed Plaintiff on paper tray status for thirty days as punishment for withholding his dinner tray. The next day, Defendant Velasco prepared Plaintiff's paper dinner tray and gave Plaintiff small portions of each food item. Plaintiff alleges that Defendant Phillips placed him on paper tray status and Defendant Velasco gave him reduced food portions to retaliate against him for his complaints and lawsuits against prison staff.
These allegations are sufficient to support a claim for damages against Defendants Velasco and ...