The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 26)
Plaintiff Louis Branch ("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 July 7, 2008. Currently pending before the Court is the second amended complaint, filed August 25, 2010. (ECF No. 26.)
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).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at the Correctional Training Facility, Soledad ("CTFS"). In August of 2002, an investigation was initiated based on Plaintiff's allegations that CDCR had a policy of retaliation against him for exercising his rights. (Second Amend. Compl. 5, ECF No. 26.) In November 2003, Plaintiff was interviewed as part of the investigation and immediately afterward he alleges he was subjected to retaliatory conduct by the filing of fraudulent reports, denial of access to the law library, physical abuse, and unlawful confiscation of his property. (Id. at 5-6.)
Defendant Mancinas instigated Plaintiff's transfer to CTFS where a known enemy of Plaintiff was housed "accusing [P]laintiff of being a 'Jail-house lawyer' and a 'shit stirring troublemaker' who had 'worn out [his] welcome at Avenal.'" (Id. at 6.) Upon arriving at CTFS, Plaintiff requested that he be transferred to San Quentin State Prison ("SQSP") or CMF-Vacaville so he could be close to his sole surviving family member. (Id. at 6, 7.)
When Plaintiff arrived at Folsom State Prison ("FSP") in January 2004, Plaintiff's requested he be transferred to SQSP and the request was granted. However his assigned counselor forged a signature to have the transfer denied. Plaintiff filed a citizens complaint. (Id. at 7.) In April 2004, Plaintiff's assigned counselor arranged for Plaintiff to be transferred to Avenal State Prison ("ASP"), allegedly in violation of the emergency transfer protocol. (Id. at 8.)
Plaintiff was transferred back to ASP in May 2004. Plaintiff informed Defendant Mendoza-Powers that Defendant Mancinas had engaged in retaliatory conduct toward Plaintiff in the past, his transfer to ASP was unlawful, and he wanted to be transferred to SQSP or CMF-Vacaville. (Id. at 8.) When Defendant Mendoza-Powers did not respond to Plaintiff's complaints, Plaintiff filed a grievance against Defendant Mancinas. (Id.) Plaintiff appeared before the classification committee and informed them of his safety concerns. (Id. at 8-9.) The committee referred Plaintiff's case to Defendant Mancinas for remedial action. "Defendant Mancinas failed and refused to perform his duty to'to [sic] effect adherence to classification procedures and goals' for Folsom's inappropriate 'Emergency' transfer to Avenal." (Id. at 9.)
In June 2004, Plaintiff submitted a sworn declaration that he had witnessed an inmate be battered and assaulted by an ASP Officer. Defendant Umphenour confronted Plaintiff and said he "would be 'dealt with' for submitting 'a false declaration against an officer.'" (Id.) Immediately ASP officials caused Plaintiff to be transferred five times in two weeks "amid the calumny and obloquy that [p]laintiff was a 'snitch' and a 'baby raper.'" (Id.) Each of Plaintiff's verbal and written pleas resulted in Plaintiff being transferred to another facility or building. (Id. at 9-10.) These transfers "virtually guaranteed" that Plaintiff's grievances would not be responded to because they would be lost, forgotten, misplaced, or not investigated due to being re-routed. (Id. at 10.)
After Plaintiff was transferred to Building 250 he was stabbed four times, bludgeoned about the head, and beaten to semi-consciousness while Defendants Umphenour, and Does 1 and 2 watched without intervening. Plaintiff was then hospitalized and placed in segregation. Defendant Umphenour was to gather and inventory Plaintiff's personal property. In August 2004, Plaintiff was transferred to Mule Creek State Prison ("MCSP"). (ECF No. 10.) When Plaintiff arrived at MCSP officials received his personal property and documented that it had been sabotaged. (Id.) After being transferred to MCSP, Defendant Grannis denied his appeal at the third level as untimely even though it was submitted timely.
In January 2005, Plaintiff was authorized to transfer back to ASP. The day before the transfer was to occur the order was rescinded by Warden Bunnell. On May 15, 2005, Plaintiff filed a request for an investigation by the Office of the Inspector General. Plaintiff did not receive an affirmative response to his request. (Id.) Plaintiff alleges there was a policy and custom of retaliatory acts due to his efforts to access the courts and grievance system that is shown by Defendants Grannis, Mendoza-Powers, and Mancinas failure "to take any remedial steps after being admonished regarding the violations." (Id. at 12.)
Plaintiff alleges that Defendants Umphenour, and Does 1 and 2 exhibited deliberate indifference to his personal safety. Defendants Grannis, Mendoza-Powers, and Mancinas' failure to take remedial steps for the series of unlawful acts committed against Plaintiff was deliberately indifferent to the risk of serious harm in violation of the prohibition against cruel and unusual punishment. Defendants Grannis, Mendoza-Powers, and Mancinas' violated Plaintiff's Eighth Amendment right to personal safety by ignoring Plaintiff's appeals, complaints, and letters.
Plaintiff alleges that Defendants Grannis, Mendoza-Powers, and Mancinas maintained a policy and custom of transfers to expose him to a risk of harm due to the exercise of his First Amendment Rights, that Defendant Umphenour's deliberate indifference to Plaintiff's safety and the vandalism of his property were willful acts of the policy and custom of retaliation for his submitting a declaration that he witnessed an officer assault another inmate, and Defendants Doe 1 and 2 were deliberately indifferent to the assault on Plaintiff due to his filing grievances.
Plaintiff alleges that Defendants Grannis, Mendoza-Powers, Mancinas, Umphenour, and Does 1 and 2 followed the policy and custom of retaliatory acts that led to his being assaulted by another inmate in violation ...