The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM THIRTY-DAY OBJECTION PERIOD
Findings and Recommendations Following Screening of Second Amended Complaint
Plaintiff Shawn Pierre Johnson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 12, 2009. Pending before the Court is Plaintiff's second amended complaint, filed April 2, 2010.*fn1
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 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Plaintiff, an inmate at Kern Valley State Prison, alleges that Lieutenant M. R. Phillips, Warden Mike Knowles, Captain R. Fisher, Jr., and Chief Deputy Warden C. J. Chrones violated his rights under the First Amendment and the Eighth Amendment of the United States Constitution. Plaintiff also alleges conspiracy claims under section 1983 and 42 U.S.C. §§ 1985(3) and 1986.
On July 14, 2006, Plaintiff's hand was shut in his cell door by Correctional Officer B. Clark. (Doc. 12, 2nd Amend. Comp., court record p. 4 ¶3.) Plaintiff filed an inmate appeal grieving the incident. (Id., ¶4.) The appeal was denied at the second level of review on October 4, 2006, by Defendant Knowles. (Id., ¶5; Exhibits, pp.38-39.) The response stated that Plaintiff told Defendant Phillips during an interview that he had been kicking his cell door because he was mad about receiving a CDC 115 (rules violation) earlier in the day for masturbation. (Id.) Plaintiff alleges that he was never interviewed by Defendant Phillips, and that the information regarding the sexual misconduct was false and endangered his safety with the inmate population.
Officer Clark subsequently viewed the appeal response and stated that the incident as described by Defendant Phillips never occurred. Officer Clark contacted Defendant Phillips and Cranmer, a correctional counselor, and informed them of the error. Cranmer spoke with B. Gricewich, an appeals coordinator, about the error, but they declined to correct the error, informing Plaintiff that the appeal was a legal document.
Plaintiff filed another appeal grieving Defendant Phillips' false statement. (Id., Exs., pp. 30-32.) On February 2, 2007, Defendant Chrones addressed that appeal at the second level of review and denied Plaintiff's request to have the information removed from his record.*fn3 (Id., Exs., pp. 33-34.) The response acknowledged that an administrative error occurred and explained that Defendant Phillips' response pertained to an appeal filed by another inmate and it was inadvertently attached to Plaintiff's inmate appeal. (Id.) Plaintiff's request was denied on the ground that inmate appeal forms are legal documents and cannot be removed from ...