The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner at Mule Creek State Prison proceeding without counsel who seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff initially filed this action on September 20, 2007, in the Superior Court of California for the County of Sacramento (Case No. 07AS04322). However, defendants were not served until January 27, 2009. (See Dkt. No. 1, at 2, ¶ 2.) On February 27, 2009, defendants paid the filing fee and removed the action to this court. On May 15, 2009, plaintiff filed a motion to remand this action to state court. The case was reassigned to the undersigned magistrate judge on February 9, 2010. On March 17, 2010, this court recommended that plaintiff's motion to remand be denied, which was adopted by the district judge on May 21, 2010. The case now proceeds in this court.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff alleges that, in September and October 2005,*fn1
counselors Rush and Anaya eavesdropped on, and monitored, plaintiff's
confidential telephone calls with his attorney. Plaintiff also alleges
that these defendants arbitrarily shortened plaintiff's attorney
calls, and then, when plaintiff filed a grievance, retaliated by
cuffing plaintiff during his calls. On November 9, 2005, plaintiff
filed an administrative grievance against this practices, naming Rush
and Anaya, who allegedly operated the "facility program office" that
facilitated inmate telephone calls.
Plaintiff alleges that thereafter, on November 28, 2005, defendants Price (Correctional Captain) and Chavarria (Correctional Counselor II) conspired to place an inmate, who had previously been placed in administrative segregation for conspiring to assault plaintiff, back in plaintiff's facility, and that Chavarria attempted to obtain plaintiff's signature on a "128 Chrono" stating that plaintiff did not consider the inmate an enemy. Plaintiff alleges that defendants Price and Chavarria made the reassignment in retaliation for plaintiff filing the above-noted administrative grievance, and "knew or should have known that placing that inmate back on the facility would result in Plaintiff being assaulted and placed in segregation." (Dkt. No. 2, at 13, ¶ 26.)
Plaintiff further alleges that on December 7, 2005, he was summoned to the office of defendant Price, who stated that he was investigating plaintiff's grievance. Plaintiff alleges that Price intimidated and threatened plaintiff with statements such as: "Don't play games on my yard. Both green and blue said you are a troublemaker. . . . Just keep this in the back of your mind, the next time I hear you're playing games on my yard, you'll be the one in the hole!" (Dkt. No. 2, at 14-15, ¶ 29.) "By 'green' and 'blue' Plaintiff understood Price to mean, 'staff' and 'inmates' respectively." (Id.)
On December 22, 2005, plaintiff filed an administrative grievance against Price alleging threats, intimidation and reprisals for plaintiff's use of the inmate appeals process. The grievance was denied by defendant Grannis (Chief, California Department of Corrections and Rehabilitation ("CDCR") Inmate Appeals) on September 27, 2006.
Plaintiff alleges that on March 21, 2006, defendant Rush came to plaintiff's cell and informed plaintiff that plaintiff would be allowed to conduct a call with his attorney; that thereafter correctional officer Partida (not named as a defendant) came to plaintiff's cell and informed him that plaintiff had to be handcuffed behind his back, on instructions from defendants Rush and Chavarria. Plaintiff alleges that Rush and Chavarria conspired to have plaintiff handcuffed in retaliation for plaintiff filing administrative grievances. On March 30, 2006, plaintiff was again ...