ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE
Plaintiff Joaquin Ramon Quiroz ("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 December 17, 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 "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 currently housed at Kern Valley State Prison. On September 10, 2007, Plaintiff was placed in administrative segregation following an assault on another inmate with a deadly weapon. In May 2008, Plaintiff pled guilty to the offense of assault with a deadly weapon in Kings County Superior Court and was sentenced to seven years. After completing 13 months of the Security Housing Unit ("SHU") term, "[P]laintiff was held in A.S.U. without a pending transfer due to [P]laintiff having an initial board hearing within 90 days." (Doc. 1, Comp., p. 4)
On August 20, 2008, the institutional committee at Corcoran State Prison recommended Plaintiff be transferred to the general population yard and all his privileges be reinstated.*fn1 On November 17, 2008, Plaintiff arrived at the California Substance Abuse Treatment Facility ("CSATF"). (Id.) On December 19, 2008, the committee for initial clearance found that because Plaintiff had been in "A.S.U." on September 10, 2007, he would be placed in the Behavioral Management Unit ("BMU"). (Id. at 5.) When Plaintiff complained about being placed in the BMU, he was told that CSATF "runs its own program." (Id.)
While house in the BMU Plaintiff was placed in privilege group C, the lowest privilege group. He was denied outdoor exercise for two months, and deprived of his property and contact visits. (Id.) Plaintiff brings this action against Defendants J. Reynoso, F. Vasquez, H. Ortiz, B. Peterson, T. P. Wan, N. Grannis, and an unnamed individual. He is seeking nominal and punitive damages and unspecified injunctive relief against the BMU alleging violations of his due process rights and double jeopardy.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.
Under section 1983, Plaintiff is required to show that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934. There is no respondeat superior liability under ...