The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
COMPLAINT DISMISSED WITH LEAVE TO AMEND(ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER
Plaintiff Rodolfo Anderson ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 18, 2009. (ECF No. 1.) No other parties have appeared.
Plaintiff's Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff alleges that his First Amendment rights are being violated by a Defendant's retaliatory conduct, that his due process rights have been violated, that he is being subjected to cruel and unusual punishment, and that Defendants have failed to protect him from the retaliatory conduct. Plaintiff names the following individuals as Defendants: B. Peterson, Correctional Counselor I and R. Diaz, Facility Captain, Chairperson of Committee.
Plaintiff alleges the following: On November 8, 2005, Plaintiff was placed in administrative segregation ("ad-seg") after being written up for an indecent exposure incident. Plaintiff received another write up for indecent exposure on January 20, 2006. He remained in ad-seg until December 21, 2006 when he was released to C-Yard general population after a Unit Classification Committee ("UCC") hearing.
On January 10, 2007, Plaintiff gave Defendant Peterson a 602 grievance asking why Plaintiff had not been taken to the UCC hearing in a timely fashion. Defendant never responded. However, shortly after that, on January 26, Plaintiff was again brought before the UCC for a hearing. Plaintiff requested a mental health clinician be present to evaluate him before the hearing. This request was denied. At the hearing, Defendant Peterson recommended that Plaintiff be classified as C status and placed in a Behavioral Management Unit ("BMU"). When Plaintiff asked why he was being placed in BMU, Defendant Peterson responded that he should not have written that 602 on him.
Plaintiff seeks a declaratory judgment, preliminary and permanent injunctions, compensatory, punitive, and nominal damages.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff states that he is being retaliated against by Defendant Peterson for exercising ...