The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
COMPLAINT DISMISSED WITH LEAVE TO AMEND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER
Plaintiff Charles Moore ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR") 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 9, 2009. (ECF No. 1.) No other parties have appeared in the action.
Plaintiff's Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim.
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 claims the violation of his First Amendment rights through retaliatory tactics and violation of his Fourteenth Amendment due process rights. He names the following individuals as Defendants: Ken Clark, Warden at Substance Abuse Treatment Facility ("SAT-F") State Prison; Director of Corrections, Director; Derral G. Adams, Warden at Corcoran State Prison; and F. Field, Corcoran State Prison Secured Housing Unit Facility 4 B.
Plaintiff alleges the following: On October 1, 2008 at approximately 7:00 a.m., Sergeant Vogel told Plaintiff that he was being moved from his then-current facility (4BIL -Enhanced Out Patient ("EOP") Housing Unit at Corcoran State Prison) to another facility. Sergeant Vogel demanded Plaintiff put handcuffs on in preparation for the move. Plaintiff refused, stating that he had not received written notification of the move or a hearing as required by prison regulations. Sergeant Vogel left and Lieutenant Pina arrived at Plaintiff's cell to inform him that he was being moved because his medical level of care had been changed to include mental health services and clinical case management. Plaintiff asked to see the written documentation. Lieutenant Pina produced a mental health chrono verifying the change. Unsatisfied, Plaintiff asked to see further documentation for the move. Lieutenant Pina stated that this was a special transfer pursuant to a different regulation than what Plaintiff cited.
Plaintiff read the section cited by Lieutenant Pina and explained that the actions described in that section were illegal because SAT-F Prison was not an EOP Special Housing Unit within the meaning of the regulation. Plaintiff then informed Pina that the chrono changing his status was suspect and null and void because Plaintiff was already housed in an EOP Special Housing Unit at Corcoran. Citing other prison regulations regarding parole board procedures, Plaintiff continued to argue and resist the move.
Since Plaintiff would not comply, Lieutenant Pina told Sergeant Vogel to use a chemical weapon. Sergeant Vogel assembled a team and that team extracted Plaintiff from his cell. Plaintiff was then transferred to the other facility.
After the move, Plaintiff filed an emergency 602 grievance describing the incident. Appeals Coordinator L. Cano denied the emergency grievance. On October 15, 2009, Plaintiff filed a citizen's complaint with Defendant Clark. Defendant Clark failed to investigate the incident.
Based on these claims, Plaintiff seeks investigation by the Federal Bureau of Investigation, injunctive relief, protection from the courts, compensatory damages, emotional distress damages, punitive damages, and an apology to the public for this wrongful burden on California budgetary problems.
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 Adams for exercising his constitutional rights.
"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).
Plaintiff has failed to plead facts sufficient to sustain a claim of retaliation by prison officials. Plaintiff claims that Defendant Adams ordered the move in retaliation for Plaintiff threatening to file a lawsuit. Plaintiff states that he had previously sent Defendant Adams a 602 grievance form with jury verdicts acquitting Plaintiff of the charges of attempted murder attached, proving, at least in Plaintiff's mind, that he was being unlawfully detained. Plaintiff had also informed Defendant of his intention to bring a lawsuit regarding this unlawful detention.
Filing a grievance is a protection action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Transferring a prisoner can be an adverse action sufficient to satisfy the retaliation standard. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (retaliatory prison transfer and double-cell status states a claim for retaliation). Thus, Plaintiff has satisfied the first and third prongs of the retaliation standard.
With respect to the fourth prong, the proper inquiry is not whether the complained-of action actually chilled Plaintiff's exercise of his First Amendment rights. "[It] would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity. . . ." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). Though Plaintiff has failed to plead any facts indicating his exercise of First ...