ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY (ECF. No. 13) COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE
Plaintiff Bruce Patrick Haney ("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 first amended complaint, filed January 20, 2011. (ECF No.13.)
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 incarcerated at the California State Prison in Corcoran. He brings this action against Defendants Rouch, J. Moon, and C. Schutt alleging deliberate indifference to his medical needs and retaliation. Plaintiff is seeking injunctive relief and three million dollars in damages.
On September 30, 2008, Plaintiff saw Defendant J. Moon for bleeding hemorrhoids and requested that he be allowed a daily shower. Defendant Moon refused to order daily showers, which Plaintiff alleges placed him at risk of getting a staph infection. (First Am. Compl. 5, ECF No. 13.) Defendant Schutt reviewed Plaintiff's inmate grievance and refused to order daily showers and therefore was deliberately indifferent to his medical needs. (Id. at 7.)
On August 28, 2009, Plaintiff received a medical chrono from Defendant Rouch informing him that she had changed his housing restrictions, allegedly in retaliation for his filing a grievance against her. (Id., § IV.) Plaintiff claims that Defendant Rouch changed the chrono without examining him or his medical records. The medical chrono has been in place since Plaintiff was first incarcerated due to a spinal injury and numerous doctors have not changed it. (Id. at 5.)
On September 14, 2009, in response to filing a grievance against the removal of his housing restriction, Plaintiff was seen by Defendant Moon who agreed that the housing restrictions were no longer necessary. Plaintiff alleges that Defendant Moon only agreed to the removal of the housing restriction in response to Plaintiff filing a grievance against him and has exhibited deliberate indifference to Plaintiff's serious medical needs. (Id. at 6.) Defendant Moon refused to look at Plaintiff's past medical evaluations or x-rays. (Id. at 7.)
Plaintiff claims that Defendants Rouch and Moon changed his medical housing chrono in retaliation for his filing grievances against them. A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of retaliation in violation of the First Amendment consists of five elements: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonable advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003).
Under the liberal standard applied to prisoners proceeding pro se in civil rights actions, Hebbe v. Pliler, 611 F.3d 1202, 1204-05 (9th Cir. 2010), Plaintiff's allegations that Defendants Rouch and Moon changed his medical chrono, which had been in place during his entire period of incarceration, in retaliation ...