The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE IN 30 DAYS
I. RELEVANT PROCEDURAL HISTORY
Alfred Eugene Shallowhorn ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 26, 2007 at the Sacramento Division of the United States District Court for the Eastern District of California. (Doc. 1.) The case was transferred to the Fresno Division on November 19, 2007. (Doc. 4.) On May 26, 2009, the Court issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On August 21, 2009, Plaintiff filed the First Amended Complaint, which is presently before the Court for screening. (Doc. 13.)
II. SCREENING REQUIREMENT
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 is required to contain only "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, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, 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).
To state a viable claim for relief, Plaintiff must set forth sufficient 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. Id.
III. SUMMARY OF AMENDED COMPLAINT
Plaintiff is presently incarcerated at Centinela State Prison in Imperial, California. At the time of the events at issue in the complaint, Plaintiff was apparently incarcerated at Kern Valley State Prison in Delano, California.*fn1 Plaintiff names as defendants the California Department of Corrections and Rehabilitation ("CDCR"); A. Molina and R. Thomas (Correctional Counselors); E. Medina and R. Fisher, Jr. (Captains); Tony Hedgpeth (Warden); J. P. Gonzales (Associate Warden); C. J. Chrones (Chief Deputy Warden); D. Smith; James E. Tilton (Director of Corrections); Michael H. Jensen (Director's Level Appeals Examiner); N. Grannis (Chief of Inmate Appeals Branch); and an undetermined number of John Doe Defendants (CDCR employees).
Plaintiff alleges as follows in the First Amended Complaint. In 1998, Plaintiff was convicted of three counts of murder in a drive-by shooting resulting in the deaths of three individuals, one who was sixteen years old at the time. Based on the minor status of the sixteen-year-old victim, prison officials invoked Title 15, Section 3173.1, of the California Code of Regulations (CCR tit. 15 § 3173.1) to restrict Plaintiff's visits with minors. Section 3173.1 imposes visiting restrictions on inmates arrested for or convicted of offenses involving minors, including sex offenses and homicide.
On June 13, 2006, the Unit Classification Committee, composed of defendants Fisher, Thomas, and Molina, prohibited any visitation between Plaintiff and his minor children, on defendant Molina's recommendation, based on CCR tit. 15, §§ 3173.1 & 3177(B)(1). The decision was made without an Institutional Classification Committee ("ICC") hearing, without an individualized determination that Plaintiff posed a threat to his minor children, and without evidence that Plaintiff posed such a threat. The prohibition remained in place until January 8, 2007.
On June 13, 2006, Plaintiff filed a 602 appeal of the Committee's decision. With regard to the appeal, defendant Thomas interviewed Plaintiff, and defendants Thomas, Gonzalez, and Medina investigated and denied the appeal.
On January 8, 2007, the ICC, comprised of defendants Gonzales, Fisher, Smith, and Molina prohibited contact visitation between Plaintiff and his minor children based on § 3173.1(d), without an individualized determination or any evidence of risk of harm.
On November 7, 2006, Plaintiff filed another appeal. Defendant Chrones partially granted the appeal, allowing Plaintiff non-contact visitation with his children. Defendant Chrones denied Plaintiff contact visitation, relying on alleged Committee findings from June 12, 2006 and January 8, 2007 that a minor was "intentionally, wilfully, ...