FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN DEFENDANTS AND CLAIMS (ECF No. 39) THIRTY-DAY DEADLINE
Plaintiff Mark Anthony Jones ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on January 14, 2008, by Mark Anthony Jones and his wife, Christine Jones. The complaint was screened on September 16, 2008, and an order was issued severing Plaintiffs' claims. (ECF No. 11.) Plaintiff filed a first amended complaint on October 17, 2008. (ECF No. 13.) On October 20, 2008, Plaintiffs filed an objection to the severance. (ECF No. 14.) On November 7, 2008, the Court issued an order addressing the objection and finding the severance was appropriate as the consolidation "would almost certainly present procedural problems causing delay and confusion." (ECF No. 18, at 3:15-17.)
The Court reconsidered the severance and ordered consolidation of the actions on September 2, 2009. (ECF No. 20.) On November 17, 2009, the original complaint was screened and the Court found that the signatures on the complaint were penned by the same hand. An order was issued directing Plaintiffs to file a second amended complaint containing an original signature of both Plaintiffs. (ECF No. 23.) On December 10, 2009, Plaintiff Mark Jones filed a second amended complaint, containing only his name in the caption, with only his signature. (ECF No. 24.) On December 22, 2009, Christine Jones filed an objection to the requirement that both signatures appear on the complaint. (ECF No. 25.) On November 9, 2010, the second amended complaint was dismissed for failure to comply with a court order because it did not contain signatures of both Plaintiffs. (ECF No. 28.) On December 15, 2010, Plaintiff Christine Jones filed a motion to strike the second amended complaint and an objection to the dismissal of the second amended complaint alleging it was fraudulent as it did not contain her signature. (ECF Nos. 32, 32, 34.) On December 22, 2010, the Court issued an order striking the third amended complaint because it did not contain signatures of both Plaintiffs. (ECF No. 36.). A fourth amended complaint was filed January 19, 2011. (ECF No. 37.) The Court screened the fourth amended complaint and issued an order dismissing the complaint, with leave to amend, and severing the action because the history of the action showed that it would be impossible for the litigants to proceed together in one action. (ECF No. 38.) Currently pending before the Court is the fifth amended complaint, filed February 25, 2011. (ECF No. 39.)
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 "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).
III. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the Substance Abuse Treatment Facility ("SATF") in Corcoran. Plaintiff brings this action naming Defendants California Department of Corrections, Kathleen Allison, Kenneth Clark, Couch, and two unknown I. S. U. Officers ("Does"). He is seeking nominal, compensatory, and punitive damages.
On August 20, 2007, Correctional Officer ("CO") C. Cribbs approached Plaintiff, who was on the phone, and told him that his fifteen minutes were up. Plaintiff told CO Cribbs that his time was not up. CO Cribbs again told Plaintiff that his time was up. Plaintiff turned his back on the CO and continued talking on the phone. CO Cribbs disconnected the phone call. CO Cribbs told Plaintiff to return to his cell immediately. Plaintiff responded, "You are a punk ass bitch." CO Cribbs again told Plaintiff to return to his cell. Plaintiff responded, "Your mom is a bitch and you are a bitch." Once again, CO Cribbs told Plaintiff to return to his cell. As Plaintiff started to walk to his cell, he turned to CO Cribbs and said, "You are a stupid mother fucker." CO Cribbs told Plaintiff to stop delaying the program and return to his cell.*fn1 (Second Amend. Compl. 20, ECF No. 24.) Plaintiff was charged with a rule violation for willfully delaying a peace officer. (Id. at 22.) On September 14, 2007, Plaintiff's wife came to visit him at SATF. Defendants Couch and Does detained her, searched her for drugs, and denied her visitation with Plaintiff, allegedly acting on their own without a valid safety or security purpose. (Fifth Amend. Compl. 9:1-6, 9:26-10:1, ECF No. 39.) Plaintiff states that his wife was harassed to retaliate against him for filing grievances and injunction requests during his incarceration. (Id. at 4:21-5:4.) Plaintiff's wife was told by Defendant Couch that Plaintiff would be sent back to the Security Housing Unit if she told Plaintiff and he filed an inmate grievance. (Id. at 9:12-16.) Plaintiff did not receive notification that the visit was denied. (Id. at 10-14.) Defendant Clark is responsible for maintaining the safety and security of the inmates and employees at the institution and instituting the rules and regulations regarding visitation. (Id. at 8:1-7; 9:8-10.)
On September 24, 2007, Plaintiff was found guilty of the rule violation which was reduced to disrespecting staff and he lost his Friday visitation for ninety days. (Id. at 5:20-26.) Plaintiff's wife visited him on October 14, 2007. (Fourth Amend. Compl. 4:6-10, ECF No. 37.)
Plaintiff includes a section in this complaint which he titles, "Plaintiff['s] answer to the Exhaustion Question (A) of Administrative Remedy [sic] is a two part answer to the question yes or no." (ECF No. 39 at 4:1-2.) In this section he references many different rights that he alleges were violated while omitting all discussion of these rights and events in his statement of claim. Since it is unclear to the Court which allegations he is attempting to raise in this action all these rights will be addressed.