The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON RETALIATION CLAIM AGAINST VILLAGRANA, AND OTHER CLAIMS AND (Doc. 1) THIRTY-DAY OBJECTION PERIOD PARTIES BE DISMISSED
Findings and Recommendations Following Screening of Complaint
Plaintiff Francis W. Davis, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 29, 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. 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.
A. Summary of Factual Allegations
The events at issue in this action occurred at the California Substance Abuse Treatment Facility in Corcoran, California in 2008 and 2009.*fn1 At the time, Plaintiff was an inmate worker at the peanut butter and jelly plant, a Prison Industry Authority (PIA) program. (Doc. 1, Comp., court record p. 18.) Plaintiff seeks to impose liability under section 1983 against T. Villagrana, PIA Supervisor; T. Dunn, PIA Superintendent; and R. Roehlk, PIA Administrator. Plaintiff alleges that his pay was impermissibly reduced, in violation of his rights under the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.
Plaintiff refused to report to work on October 27, 2008, because security staff would not allow him to bring his hairbrush in with him. On October 28, 2008, Plaintiff again refused to report to work, because he was not permitted to wear his long john shirt and beanie/skull cap. (Id., pp. 14, 18, 19.) On October 27, 2008, Correctional Officer Wajda, a Facility D PIA officer, authored a CDC-128-A chrono against Plaintiff for refusal to work, and on October 30, 2008, he authored a CDC-115 Rules Violation Report against Plaintiff based on Plaintiff's refusal to perform work two days in a row. (Id., p. 18-19.)
The disciplinary hearing on the CDC-115 rules violation was held on November 10, 2008. (Id., p. 32.) The hearing officer found that it was reasonable to believe the events occurred as reported, but because Plaintiff never made it to his work assignment, he could not have refused to perform his assigned duties as reported within the body of the rules violation report. (Id., p. 33.) The hearing officer found that it was in the interest of justice to dismiss the charge and he did so. (Id.) A "Dismissal Chrono" documenting that Plaintiff was found not guilty and the charge was dismissed in the interest of justice was authored by the hearing officer on November 10, 2008. (Id., p. 35.)
On November 10, 2008, Plaintiff returned to work and was told by Defendant Villagrana that his pay would have been reduced if he had been found guilty of the rules violation, but it would remain the same because he was found not guilty. (Id., p. 12.) On November 18, 2008, Plaintiff was called to Defendant Villagrana's office and told that effective December 1, 2008, his pay was going to be reduced. (Id., pp. 12, 14.) Defendant Villagrana told Plaintiff that his pay was being reduced because his refusal to go to work those two days affected the shop's production. (Id., p. 14.) Defendant Villagrana asked Plaintiff to withdraw his appeal against Officer Wajda, but Plaintiff refused. (Id., p. 5.) Plaintiff alleges that because he was found not guilty of the CDC-115 rules violation and he did not receive a CDC-128-B chrono, it was impermissible for Defendant Villagrana to reduce his pay and he did it to retaliate against Plaintiff for filing a grievance against Officer Wajda. (Id., pp. 5, 14.)
On December 1, 2008, Plaintiff filed a grievance against Defendant Villagrana for reducing his pay. (Id., p. 12.) Plaintiff's appeal was denied at the informal level of review by Defendants Dunn and Roehlk, who found that Defendant Villagrana acted within the scope of his duties and that Plaintiff's pay was reduced because he was subject to disciplinary action via the 128-B chrono. ...