The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE DUE PROCESS (Doc. 1) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Charles E. Thomas, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 11, 2010. 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.
To state a claim, 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.
Plaintiff, who is currently incarcerated at California State Prison-Corcoran in the Security Housing Unit (SHU), brings this action against prison officials based on events which led to his 2007 re-validation as an active member of the Black Guerilla Family (BGF) prison gang. Plaintiff names Correctional Sergeant M. T. Dotson, Correctional Officer and Institutional Gang Investigator J. Campbell, Chief Deputy Warden R. Davis, Inmate Appeals Coordinator R. Chavez, Associate Warden K. Santoro, Inmate Appeals Branch Chief N. Grannis, Correctional Counselor S. Isaac, and Special Services Unit Agent T. Rosenkrans as defendants.
Plaintiff was validated as an active member of the BGF in 1998, and in
2005, he was validated as an inactive member of the BGF.*fn1
In 2007, Plaintiff's status was reviewed and he was
re-validated as an active BGF member based on the confiscation of a
document deemed to be related
to the teachings of the BGF. It is this re-validation which forms the
bases for the claims in this action.
On December 14, 2006, an investigation into Plaintiff's inactive status was initiated, and on April 3, 2007, Defendant Dotson authored a confidential memorandum identifying Plaintiff as being in possession of a document evidencing gang affiliation. (Doc. 1, Comp., court record pp. 36-37.) Plaintiff was issued written notice of the validation source on September 21, 2007, and interviewed by Defendant Campbell on September 25, 2007. (Id., pp. 38-39.) Defendant Campbell recommended that Plaintiff be re-validated and Plaintiff was re-validated by Defendant Rosenkrans on October 3, 2007. (Id., p. 39, 56.)
The document used to re-validate Plaintiff was a short article entitled "Black August 2000: A Story of African Freedom Fighters," which prison officials deemed to be BGF-related because it was about George Jackson, a founding member of the BGF. (Id., p. 37-39.) Defendant Dotson removed the article from an authorized magazine called "It's About Time" during a search of Plaintiff's cell. Plaintiff alleges that the article was also later published in "Prison Focus," another publication inmates are authorized to receive.
Plaintiff denies involvement in gang activity and alleges that he was wrongfully re-validated based solely on the article contained in an authorized publication. Plaintiff denies that the article was about gang activity and contends that he is being punished for his association with other members of his racial group and for his study of the history and culture of his racial group.