The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
THIRTY-DAY DEADLINE ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM
Plaintiff Michael Rhinehart, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 4, 2009. 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, 129 S.Ct. at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
II. Summary of Plaintiff's Complaint
Plaintiff, who is currently incarcerated at Salinas Valley State Prison, brings this action against Warden K. Harrington and Appeals Coordinator D. Tarnoff for violating his rights while he was at Kern Valley State Prison. Plaintiff seeks damages and an injunction requiring Warden Harrington to cease retaliating against Plaintiff. Because Plaintiff is no longer housed at Kern Valley, his request for injunctive relief is moot and he may seek only damages as relief. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
On September 11, 2008, Plaintiff, who was housed on Facility A at the time, was transported for a court appearance. When he returned to the prison on October 8, 2008, he was housed on Facility D, considered by prison officials to be a "trouble facility" which housed problem prisoners. Plaintiff objected to the housing change and tried repeatedly to appeal the decision, only to have his appeals returned unprocessed.
Plaintiff alleges that when he was housed on Facility A, he filed four appeals, and that he was rehoused on Facility D in retaliation for filing complaints against peace officers. Plaintiff alleges that he sent Defendant Harrington three different appeals and a personal letter via confidential legal mail, but he ignored Plaintiff's pleas to stop the harassment and retaliation. Plaintiff alleges that Defendant Tarnoff refused to process more than ten of his appeals. Plaintiff also alleges that every senior prison official he has written to, including Associate Warden Wood and the Director of the California Department of Corrections and Rehabilitation, has refused to intervene.
B. First Amendment Retaliation Claim
Plaintiff does not have a constitutionally protected right to be housed in a particular housing unit or to a grievance procedure. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293 (1995); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). However, the Constitution does protect prisoners from being retaliated against for exercising their First Amendment rights, including filing prison grievances. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). "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).
If Plaintiff was transferred to a less desirable facility at the
prison to punish him for filinginmate appeals against
prison staff, he may be able to state a
cognizable claim for retaliation, assuming the absence of any
legitimate penological purpose for the facility change. Rhodes,408
F.3d at 567-68; Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
However, only those responsible for the retaliatory housing assignment
may be held liable under section 1983. Iqbal, 129 S.Ct. at ...