ORDER DISMISSING COMPLAINT, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM AND DIRECTING CLERKS OFFICE TO ENTER JUDGMENT
Plaintiff Johnny Castro 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 October 7, 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 ("CDCR") and is currently housed at Pelican Bay State Prison ("PBSP"). In 1992, Plaintiff, also known as J-Bird, was validated as a gang member. (Doc. 1, Comp., pp. 13, 36.) On June 28, 2001, while incarcerated at PBSP, he was designated as inactive. He was released into the general population on October 1, 2001. Plaintiff was transferred to Salinas Valley State Prison ("SVSP") and then to Kern Valley State Prison ("KVSP"). (Id., p. 13.)
While Plaintiff was housed at KVSP he used a third party mail drop to send correspondence to an inmate named Robert Lopez. Prison officials determined that this Robert Lopez was a validated Mexican Mafia ("EME") prison gang member. On February 13, 2009, Plaintiff was placed in administrative segregation and received a gang validation packet based on three criteria: 1) letter to Robert Lopez written by Plaintiff; 2) letter to Plaintiff written by Robert Lopez; and 3) a note found in a "Southern Mexican's" cell at SVSP on November 2, 2006. (Id, p. 7.) Plaintiff alleges that the Robert Lopez he wrote to is not the Robert Lopez who is a validated Mexican Mafia gang member. (Id., p. 8.) Based upon this validation Plaintiff has been confined to the Security Housing Unit ("SHU") at PBSP.
Plaintiff offers a report authored by Defendant Prouty as evidence that Defendants were aware of the mistake in determining that he was active in the prison gang on June 3, 2008. This report shows that Plaintiff admitted that he was using a third party mail drop to correspond with an inmate at the California Correctional Institution. This inmate, Robert Lopez, also known as Vampiro, is a validated Pomona Northside gang member. (Id., p. 59.) This same mail drop was used by EME members housed at PBSP to send and receive mail. Michael Lerma, also known as Big Mike, a Pomona 12th Street gang member housed at PBSP uses this same address to send and receive correspondence. Big Mike has received correspondence from Robert Lopez using this same address. All three men are linked to the Pomona 12th Street gang. (Id.) On November 2, 2006, officers searched the cell of two Sureno gang members at SVSP and found notes hidden in a light fixture. The notes identified inmates involved in EME prison gang activity. Two of the notes mentioned "J-bird P12" and "reference[d] a governing body of influential Sureno inmates who have volunteered to take and enforce orders from the EME prison gang to further promote prison activity within the institution." (Id., p. 66.) "J-bird P12" was identified as Plaintiff and he was found to be housed at the institution during the timelines mentioned in the notes. (Id.)
Plaintiff informed Defendant Prouty, the hearing officer in charge of the validation process, that the Robert Lopez he was corresponding with was an inmate in Tehachapi State Prison and was not a Mexican Mafia Gang member. Additionally, since Plaintiff was transferred out of SVSP on February 1, 2006, he could not have been involved in the activity described in the notes found on November 2, 2006. (Id., p. 12.) Defendant Krum interviewed Plaintiff in response to his inmate appeal and Plaintiff informed him that the validation was based on false information. Plaintiff wrote several letters to Defendant Williams, Internal Affairs, inquiring as to why his civil complaint was being ignored. Defendant Garza signed off on the gang validation. Defendant Puente could have proved the charges were false. Defendant Brodie was aware that the charges were false and stated he could not tell Institutional Gang Investigators how to do their job and advised Plaintiff to ask for $30,000 in his lawsuit. (Id., p. 3.) Plaintiff alleges that the CDCR policy changes agreed to in Castillo v. Terhune, No. C 94-2847-MJJ (N.D.Cal. 1994) were not adhered to in his situation. (Id., p. 5.)
Plaintiff brings this action against Defendants Correctional Officer ("CO") Prouty, Sgt. Krum, Sgt. Williams, Lt. Garza, CO Puente, and Sgt. Brodie, in their individual and official capacities, alleging violations of due process and deliberate indifference due to a failure to train and supervise subordinates. Additionally, Plaintiff requests appoint of counsel. (Id., p. 17.)