The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On March 3, 2010, plaintiff's consent to the jurisdiction of the undersigned was filed. Docket # 5. By order filed June 2, 2010 (docket # 8), plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has filed an amended complaint which supersedes the original. See Local Rule 220.
As plaintiff has been previously informed, 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
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, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff's claims are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. Rule 8 of the Federal Rules of Civil Procedure requires "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the notice requirement of Rule 8.) Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
While plaintiff is to be commended for attempting to separately frame his claims as to each defendant, in doing so he has not provided a sufficient factual predicate for his allegations. For example, as to defendant Clark, plaintiff claims that she issued a CDC-115 Rules Violation Report (RVR) on May 22, 2009, against him based on a "non-existent charge of over-familiarity," causing him to be placed in administrative segregation (Ad Seg) for nine months and resulting in his having been denied pre-approved family visits or the opportunity to take part in his graduation from a Microsoft Specialist Certification program. Amended Complaint (AC), p. 4. For plaintiff to simply make a claim that the charge was false or had a "non-existent" basis is conclusory and simply insufficient to rise to what he characterizes as an Eighth Amendment claim; i.e., it does not adequately support his claim of deliberate indifference or cruel and unusual punishment. Nor is it enough to allege, as he does, that she refused to reconsider or that she introduced negative documents into his central file that might affect a future determination of parole suitability, or that she has removed other students from her classroom in a similar manner. Id. Plaintiff must provide the factual basis upon which he alleges the RVR was wrongly issued. Defendant Clark will be dismissed but plaintiff will be given one more opportunity to amend.
As to defendant Thomas, plaintiff alleges that this defendant placed him in Ad Seg on May 22, 2009, based on the "false charge," which subjected him to "cruel conditions," as plaintiff was thereby unable to use his respiratory device for a week and this defendant also allegedly placed an unidentified negative document in his central file on July 23, 2009, prolonging the "cruel conditions." AC, p. 5. Again, plaintiff has not made a sufficient showing to support the alleged falsity of the RVR charge, nor does he show that by placing him in Ad Seg it was defendant Thomas who was actually responsible for having deprived plaintiff of his respiratory device for a week. Defendant Thomas will be dismissed but plaintiff will be granted leave to amend.
With regard to defendant Hurtado, plaintiff claims he violated plaintiff's due process rights at his May 26, 2009, Ad Seg placement classification committee by not permitting plaintiff to present a defense in the form of witnesses or supporting documentation, but plaintiff does not provide any information as to what such evidence would have shown nor does he set forth the constitutional basis upon which he claims he is entitled to such due process at a classification hearing. A prisoner does not have a constitutional right to a particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (quoting Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 (1976), wherein, in a footnote, the Supreme Court explicitly rejected a claim that "'prisoner classification and eligibility for rehabilitative programs in the federal system' invoked due process protections"). Nor does administrative segregation "in and of itself...implicate a protected liberty interest." Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003, citing Sandin v. Connor, 515 U.S. 472, 486 115 S.Ct. 2293 (1995)). Moreover, plaintiff has not alleged sufficient facts to indicate that the conditions of administrative segregation constituted an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin, supra, 515 U.S. at 484, 115 S.Ct. at 2300.*fn1 Defendant Hurtado will be dismissed but plaintiff will be granted leave to amend.
Plaintiff's allegations against defendants Swarthout, Gonzalez and Hudnall also center on his claims of due process violations at his Ad Seg placement classification committee and will also be dismissed with leave to amend.
As to defendant Douglas, plaintiff claims that this defendant violated his due process rights by not permitting plaintiff to present witnesses or documentary evidence at his prison disciplinary hearing in July, 2009 on the RVR referenced earlier by plaintiff. AC, p. 6. Nevertheless, plaintiff states that the RVR was dismissed for due process violations. Id. When the RVR was re-issued and re-heard, plaintiff claims that due process violations occurred again, in the form of denial of witnesses, omission of documentary evidence and time limits that were exceeded. Id. Plaintiff goes on to state that as to this issue, he is currently awaiting a third level response to his administrative appeal. Although plaintiff elsewhere claims to have exhausted all his administrative remedies (AC, p. 10), on the face of it this assertion is belied by plaintiff's own representation, at least as to this allegation, at the time he filed his complaint.
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." In Booth v. Churner, 532 U.S. 731,741, 121 S.Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Moreover, 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). As he states in the amended complaint that he is still awaiting a third level review response, it is plain that he did not exhaust his administrative remedies with regard to defendant Douglas before filing the amended complaint. Rhodes v. Robinson, No. 08-16363, ___ F.3d ___, 2010 WL 3489777 * 5 (9th Cir. Sept. 8, 2010) (PLRA exhaustion requirement satisfied so long as plaintiff has exhausted his administrative remedies prior to filing the amended complaint). Defendant Douglas will be dismissed without prejudice from this action because, while plaintiff may elect to proceed against him on this claim in another action once plaintiff's claim against him is administratively exhausted, he may not do so in the instant one.
As to defendant McAtee, plaintiff alleges that on July 23, 2009, she offered "false testimony" against plaintiff, apparently in support of defendant Thomas, causing plaintiff's "cruel conditions" to continue and leading to plaintiff's nervous breakdown and anxiety attack the next day. AC, p. 7. Plaintiff states that he had to go to the emergency room and was later transferred from general propulation Ad Seg to a mental health care Ad Seg, where he began to take medication for anxiety and depression. Id. Once again plaintiff fails to provide an adequate context for his claims. Plaintiff's conclusory allegation of "false testimony" by ...