ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO COMPLY WITH A COURT ORDER (Doc. 24) ORDER DENYING PLAINTIFFS' MOTION FOR JUDICIAL NOTICE (Doc. 26) THIRTY-DAY DEADLINE
Plaintiffs Mark Anthony Jones and Christine Jones ("Plaintiffs"), husband and wife, filed a civil rights action pursuant to 42 U.S.C. § 1983 on December 5, 2007. Mark Jones is a state prisoner, proceeding in forma pauperis in this action, and is incarcerated at the California Substance Abuse Treatment Facility (CSATF) in Corcoran, California. Christine Jones resides in Petaluma, California. The complaint was screened on September 16, 2008, and an order was issued severing Plaintiffs' claims. (Doc. 11.) The Court reconsidered the severance and ordered consolidation of the actions on September 2, 2009. (Doc. 20.) On November 17, 2009, the original complaint was screened and an order was issued directing Plaintiffs to file a second amended complaint containing an original signature of both Plaintiffs. (Doc. 23.) On December 10, 2009, Mark Jones filed a second amended complaint, containing only his name in the caption, with only his signature. (Doc. 24.) On December 22, 2009, Christine Jones filed an objection to the requirement that both signatures appear on the complaint. (Doc. 25.) On June 24, 2010, Christine Jones filed a motion for the Court to take judicial notice that Plaintiffs are ready to prosecute the case. (Doc. 26.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiffs must demonstrate that each defendant personally participated in the deprivation of their rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.
Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
III. Complaint Allegations
The incidents alleged in the complaint occurred at CSATF, where Mark Jones has been validated as a member of the Black Guerrilla Family prison gang and is a known litigator. (Doc. 24, Second Amend. Comp., p. 4:16-24.) On August 20, 2007, Correctional Officer ("CO") C. Cribbs approached Mark Jones, who was on the phone, and told him that his fifteen minutes were up. Mark Jones told CO Cribbs that his time was not up. CO Cribbs again told Mark Jones that his time was up. Mark Jones turned his back on the CO and continued talking on the phone. CO Cribbs disconnected the phone call. CO Cribbs told Mark Jones to return to his cell immediately. Mark Jones responded, "You are a punk ass bitch." CO Cribbs again told Mark Jones to return to his cell. Mark Jones responded, "Your mom is a bitch and you are a bitch." Once again, CO Cribbs told Mark Jones to return to his cell. As Mark Jones started to walk to his cell, he turned to CO Cribbs and said, "You are a stupid mother fucker." CO Cribbs told Mark Jones to stop delaying the program and return to his cell. (Id., at. 20.) Mark Jones was charged with a rule violation for willfully delaying a peace officer. (Id. at 22.)
On September 14, 2007, Christine Jones went to CSATF to visit her husband, Mark Jones. She was searched for drugs by Defendant Couch, without a warrant, and then denied visitation with Mark Jones. (Id., at 4:4-9; 5:5-9; 9:20-22.) Defendant Couch allegedly told her that she was not to tell Mark Jones and that he was not to file a grievance regarding what happened or he would be placed in the Security Housing Unit. (Id., at 4:13-15; 9:20-23.) Mark Jones never received an institution termination form informing him that Christine Jones had been denied a visit with him. (Id. at 5:10-14.)
A rule violation hearing was held on September 24, 2007, regarding the incident on August 20, 2007. Mark Jones was found guilty of the lesser included charge of disrespecting staff. (Id. at 24.) He was assessed a ninety day loss of Friday visiting privileges. (Id. at 5:20-26; 26.)
On September 26, 2006, Mark Jones alleges that unnamed officers conducted a retaliatory search of his cell. (Id. at 11:8-11.) At the time, Mark Jones was taken to the showers and was denied emergency medical care for severe chest pain by two unnamed Defendants. (Id. at 11:12-14.)
Plaintiffs bring this action against Defendants California Department of Corrections and Rehabilitation, Warden Kenneth Clark, Investigative Services Office Couch and two unknown officers for violations of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
Plaintiffs' second amended complaint will be dismissed for failure to comply with the Court's order that it contain signatures of both Plaintiffs. Plaintiffs will be given the opportunity to file an amended complaint within thirty days. In the paragraphs that follow, the Court will provide Plaintiffs with the legal standards that appear to apply to their claims. Plaintiffs should carefully review the standards and amend only those claims that they believe, in good faith, are cognizable.*fn1