The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 TWENTY-DAY OBJECTION PERIOD
Findings and Recommendations Following Screening of Fourth Amended Complaint
I. Screening Requirement and Standard
Plaintiff Jesse Galindo, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on April 8, 2009. Pending before the Court is Plaintiff's fourth amended complaint, filed on November 24, 2010.*fn1
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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 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). 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, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Iqbal, 129 S.Ct. at 1949; 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
1. First Amended Complaint
In his first amended complaint, which was subject to the screening
order filed on December 2, 2009, Plaintiff, a validated affiliate of
the Mexican Mafia (EME) prison gang, alleged that pursuant to the
settlement agreement in Castillo v. Alameida, et al.,*fn2
validated prison gang affiliates are not supposed to be in
segregated housing based solely on their gang affiliation
Rather, an affiliate may only be segregated if there is "some evidence" that the affiliate engaged in an illegal act or an act of serious misconduct in furtherance of the gang within the past six years.
Plaintiff challenged not his validation, which he accepted as supported by "some evidence" of socialization with other gang affiliates, but the decision of prison officials to segregate him in the absence of "some evidence" supporting his segregation as defined in the Castillo settlement agreement. (Doc. 12, Amend. Comp., court record p. 8.) Plaintiff also alleged that he was not being provided with meaningful classification committee reviews, that his right to associate was infringed upon by prison ...