The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND
Plaintiff Lorenzo Martin, a former state prisoner proceeding pro se
and in forma pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on October 13, 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.*fn1
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.
The events at issue in this action occurred at Kern Valley State Prison in Delano, California. Plaintiff alleges that Correctional Officer N. Tupper sexually harassed him in violation of the Eighth Amendment, and that Tupper and Correctional Officer R. Drewry retaliated against him in violation of the First Amendment. Plaintiff seeks damages and equitable relief for the violation of his rights.*fn2
On November 15, 2008, Defendant Tupper was conducting a strip search of Plaintiff following visitation and stated, "Ooh, your asshole is pink and wet." (Comp., p. 3.) When Plaintiff objected in shock, Defendant Tupper's demeanor changed and he said, "You need to be stabbed, and if you ever front me off, I'll put some shit on you, and get you fucked off." (Id.) Plaintiff /// interpreted the events as unwanted sexual harassment and then threats against him to keep him silent, once he objected. Plaintiff filed an inmate appeal grieving the misconduct.
On November 11, 2008, Defendants Tupper and Drewry cancelled his visit for no apparent reason and without justification, in retaliation ...