The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DISMISSING CERTAIN CLAIMS AND DEFENDANTS (DOC. 1) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
Findings and Recommendations
Plaintiff Lonnie Williams ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing a complaint on May 27, 2010. On July 14, 2010, the undersigned screened Plaintiff's complaint and found that it stated cognizable claims against Defendants J. Lopez, Brewer, and DaViega for unrelated claims. The undersigned issued an order requiring Plaintiff to either file an amended complaint curing the deficiencies herein, or notifying the Court of Plaintiff's willingness to proceed only on claims found to be cognizable. On September 8, 2010, Plaintiff notified the Court that Plaintiff is willing to proceed only on the cognizable claims against Defendant Lopez. The Court issues the following Findings and Recommendations.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of Complaint and Analysis
Plaintiff was previously incarcerated at North Kern State Prison ("NKSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants correctional officer J. Lopez, captain K. Da Viega, sergeant Taylor Swaim, sergeant F. Martinez, Jr., correctional officer Sergio Castrejon, lieutenant George Becerra, acting warden Maurice Junious, licensed psychiatric technician Elizabeth Brewer, and litigation coordinator Laura M. Williams. Plaintiff also names CC I P. Horn, Dunlop, Longacre, Cunningham, Tindle, Kyle, Vetterick, and D. Harban in the body of the complaint. Plaintiff alleges violations of the First, Fourth, Eighth, and Fourteenth Amendments.*fn1
Plaintiff makes several disparate allegations which the Court will analyze separately.
Plaintiff alleges the following. Plaintiff is HIV-positive and a transsexual. (Compl. 3.)*fn2
Plaintiff wrote inmate grievances regarding a potential transfer to California Correctional Institution or Corcoran State Prison, because Plaintiff contends Plaintiff cannot be placed in valley fever areas, or to Pelican Bay State Prison because Plaintiff cannot be isolated. (Compl. 3.) Plaintiff alleges that Defendant Williams conspired with P. Horn, Maurice Junious, George Becerra, Castrejon, Taylor Swaim, and F. Martinez to retaliate against Plaintiff for filing prison grievances. (Compl. 3.) Plaintiff also alleges deliberate indifference in violation of the Eighth Amendment if transferred to any of the above locations.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see 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).
As of the date of this Findings and Recommendations, Plaintiff is incarcerated at California State Prison, Sacramento ("CSP-SAC"). (Notice of Change of Address, filed June 28, 2010, Doc. 9.) Plaintiff does not state a claim for retaliatory prison transfer. Plaintiff has not sufficiently linked which Defendants threatened Plaintiff with transfer in retaliation for filing of inmate grievances. To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal ...