The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Carter, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. On March 29, 2010, counsel for all eight defendants filed a motion to dismiss Carter's amended complaint under Federal Rule of Civil Procedure 12(b)(6). Carter has filed an opposition to the motion and the defendants have filed a reply. The motion to dismiss is GRANTED with leave to amend.
"A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (citing Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1949 (2009)). The following facts are alleged in Carter's amended complaint.
On November 21, 2007, Carter was placed into administrative segregation because prison officials suspected him of a battery on a fellow inmate. Doc. 28 at 2. On December 15, 2007, defendant Rivas, an officer at Folsom State Prison (Folsom), issued Carter a disciplinary report and on January 9, 2008, defendant Cannedy, another Folsom officer, conducted a disciplinary hearing in connection with the suspected battery. Id. Carter asked that the hearing be suspended because Rivas had failed to provide Carter with all non-confidential material that was to be used against him at the hearing. Id. Cannedy refused to suspend the hearing. Id. At the close of the hearing, Cannedy determined that Carter was guilty of the battery. Id. Carter alleges that, in finding him guilty, Cannedy relied on unreliable confidential information. Id. at 2-3.
On January 25, 2008, defendants Lieber and Mandeville, officers at Folsom, reviewed the final adjudication report from the hearing and submitted it to the "classification committee," despite Carter's concerns regarding the information used at the hearing. Id. at 3. Carter alleges that as a result of the adjudication, Carter was transferred to Corcoran State Prison (Corcoran) and given a term of 24 months in the Segregated Housing Unit (SHU). Id.
On February 6, 2008, Carter alleges that he appeared before the "institution committee," where he again complained about the procedures used at his disciplinary hearing. Id. at 3-4. Carter states that defendant Reyes, the chair of the committee and a Folsom officer, told him that the committee believed Cannedy conducted a fair hearing, and upheld the results of the hearing. Id. at 4. That same day, Carter filed an inmate grievance challenging the guilty finding. Id.
Carter states that his grievance was granted on March 27, 2008, and the guilty disposition was vacated and a new hearing ordered. Id. Carter alleges, however, that even after the guilty disposition was vacated, he remained in administrative segregation or in the SHU at Corcoran for some period of time. Id. On May 22, 2008, he requested that defendant Davis, the chief discipline officer at Corcoran, conduct the new hearing, but received no answer. Id. On June 5, 2008, he filed another grievance, this time regarding Corcoran's failure to conduct his new hearing, but he alleges that defendant Cano, another Corcoran officer, rejected ("screened out") his grievance on the ground that it was not Corcoran's responsibility to conduct a new hearing regarding events that had occurred at a different facility. Id. at 4-5. Carter states that he then "returned the screenout form," arguing that it was Corcoran's responsibility to hold a new hearing, but that on June 19, defendant Nicholls, a correctional counselor at Corcoran, reviewed the grievance and again rejected it; Carter alleges it was "screened without relief and an unintelligible response was given do [sic] to C. Nicholls['s] handwriting." Id. at 5. On June 22, 2008, Carter again wrote to Davis, seeking his rehearing. Id. On June 24, he appealed to the next level in the inmate appeal process, but this appeal was rejected on July 3 by Cano because Carter had forgotten to sign a form. Id. at 5-6.
On July 25, 2008, Carter received a new discipline report; on August 22, he received his new hearing. Id. at 6. He alleges that at the new hearing, he was found not guilty of the battery "due to the non-reliability of the confidential information." Id. Carter's opposition to the motion to dismiss says that his new hearing "was conducted four months after the [original] guilty finding was vacated subjecting plaintiff to the abnormal living conditions of the SHU." This allegation is unclear. It may be that he is attempting to allege that he remained in the SHU until sometime after his second hearing, a time period of just under five months. Doc. 40 at 6. It is not clear when Carter was moved from the SHU following his second hearing, but his amended complaint alleges that he spent at least 285 days "in administrative segragation [sic] and the SHU." Doc. 28 at 4. At some point, he was apparently removed from the Corcoran SHU, because as of August 2, 2009, the date of his amended complaint, he was no longer at Corcoran. Doc. 28 at Cover Sheet (listing address as Salinas Valley State Prison); see also Doc. 28 at 1 (identifying himself as a prisoner at Tehachapi State Prison).
Based on the above alleged facts, Carter argues that he is entitled to relief under 42 U.S.C. § 1983 on grounds that he was deprived of due process of law as guaranteed by the Fourteenth Amendment (1) when at his initial hearing, Rivas failed to give him all the non-confidential information to be used against him, and Cannedy nonetheless refused to suspend the hearing; (2) when at the hearing, Cannedy found him guilty based on confidential information without an appropriate assessment of the reliability of that information; (3) when defendants Lieber, Mandeville and Reyes ratified the allegedly faulty results of the hearing; (4) when Davis failed to respond to his request for a rehearing; (5) when Cano failed to file Carter's grievance; and (6) when Nicholls failed to grant his appeal.
Carter also asserts that his right under the Fifth Amendment was violated when Reyes affirmed the results of the hearing. He further alleges that Cano impeded his First Amendment right of access to the courts and right to petition the government for the redress of grievances, as well as his due process rights, when he failed to file Carter's grievance, and that Nicholls violated his First Amendment right by failing to grant Carter's grievance.
Carter fails to state a claim for relief under section 1983 based on violations of the First Amendment. Carter asserts that Cano and Nicholls violated his First Amendment right of access to court and right to petition the government for the redress of grievances. In his opposition to the motion to dismiss, he elaborates on this argument, contending that Cano "initially tryed [sic] to interfere with plaintiff filing his appeal by stating his institution was not the proper venue for filing the appeal, because the violations occurred at another facility," but that after further communication from Carter, Cano "processed the appeal" and "passed [the ...