ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff James E. Bryant ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint, filed July 23, 2009. (Doc. 1.)
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, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 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).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is housed at California Substance Abuse Treatment Facility in Corcoran. On August 2, 2006, inmate Jackson was assigned be Plaintiff's cellmate. (Doc. 1, ¶ 10.) Inmate Jackson asked Plaintiff for help with his appeal and Plaintiff responded that he wouldn't help Jackson across the street, the State should have killed him instead of sentencing him to twenty five to life. Plaintiff then told inmate Jackson, "I guess you'll try and kill me since the staff around here tell everyone I'm gay." (Id., ¶ 11.) Inmate Jackson began to jump on his bed until he was removed from the cell by Defendant Nesmith. (Id.)
On August 6, 2006, Defendant Nesmith wrote a confidential chrono stating that Plaintiff had attempted to engage in sex games with his cellmate, inmate Jackson, and that Plaintiff had stated he was going to beat up and rape his cellmate. (Id., p. 30.) The chrono was placed in Plaintiff's central file and inmate Jackson was listed as an enemy of Plaintiff. (Id., ¶ 13.) Plaintiff was placed in administrative segregation ("ad seg") based upon his being perceived as a threat to the safety and security of the institution. (Id., ¶ 14, p. 31.) On August 7, 2006, Defendant Smart came to ad seg for a review and ordered Plaintiff to remain in ad seg and to be housed and exercised alone pending the ICC review. (Id., ¶ 16.)
On August 9, 2006, Defendant Smart appeared at the ICC review. (Id., ¶ 17.) On August 18, 2006, a rule violation report was issued charging Plaintiff with threatening an inmate. (Id., ¶ 18.) On September 15, 2006, Defendant Baires conducted a disciplinary hearing on the rule violation and Plaintiff was found not guilty due to lack of corroborating evidence. (Id., ¶ 19.) Plaintiff continued to be housed in ad seg due to enemy concerns. (Id., p. 52.)
On October 19, 2006, Plaintiff appeared before the ICC. (Id., ¶ 22.) On January 18, 2007, Plaintiff requested documents be removed from his central file. Defendant Baires told Plaintiff that only the documents ordered to be removed by Defendant Smart would be removed from the file. (Id., ¶ 25.) On November 6, 2006, Plaintiff wrote to Defendant Clark expressing his concern of being housed alone due to his asthma and heart condition. (Id., ¶ 26.) On January 25, 2007, Plaintiff appeared before another ICC committee. Although Plaintiff requested that he be transferred to another prison, he was released from ad seg into D facility and was ordered to be housed alone because he was determined to be a predator of his cellmates. (Id.)
On February 9, 2007, Plaintiff was told he was to be moved to the
yard. A short time later Plaintiff was told by Sgt. Munoz that
Defendant Lias had said he was to be single celled and Plaintiff was
ordered to remain in ad seg. (Id., ¶ 28.) On February 13, 2007, the
lock up order was rescinded and Plaintiff was moved to D facility on
February 15, 2007. (Id., ¶ 29.) On February 23, 2007, Plaintiff
appeared before the UCC committee, chaired by Defendant Smart, and was
designated to have an "R" (sex) and "S" (single cell) suffix on his
file and no gate passes for work or placement in building one because
Plaintiff could be a predator on inmates housed there.*fn1
(Id., ¶ 30.) Plaintiff alleges that he suffered a heart
attack which required open heart surgery from the "undue stressful
situations, assaults by staff and inmates orchestrated by staff" and
mental and emotional stress. (Id.,¶ 31.) The remaining fourteen pages of the complaint consist mainly of
legal argument and case citations.
Plaintiff alleges that he was placed in restrictive custody for 194 days without procedural safeguards required by Wright v. Enomoto, 462 F.Supp. 397 (N.D. Cal. 1976) in violation of due process and Title 15 of the California Code of Regulations. Defendants engaged in retaliatory conduct because he has been active in pursuing the rights of other prisoners which has made him unpopular with prison staff and "a bunch of [like minded] inmates." (Id., p. 17.) Plaintiff contends that if the report is to be believed he was placed in ad seg for protected conduct, talking about sex, which was retaliatory conduct. (Id., p. 19.)
Plaintiff contends that his rights under the First, Fifth, and Fourteenth Amendments were violated by leaving documents in his central file. Defendant Nesmith never observed any conduct and knew the information was unreliable. Defendant Nesmith never complied with Plaintiff's repeated demands that a sex kit be required, and if Defendants ...