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Everett Galindo Gonzalez v. Derral G. Adams

May 31, 2011

EVERETT GALINDO GONZALEZ,
PLAINTIFF,
v.
DERRAL G. ADAMS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING CLAIM AGAINST DEFENDANT GRANNIS AND TITLE 15 CLAIM WITH PREJUDICE, AND DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 14) THIRTY-DAY DEADLINE

Screening Order

I. Screening Requirement and Standard

Plaintiff Everett Galindo Gonzalez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 23, 2009. Plaintiff's original complaint was stricken from the record for failure to comply with Federal Rule of Civil Procedure 8(a) and on April 29, 2010, Plaintiff's first amended complaint was screened. Plaintiff was ordered to either amend or notify the Court of his willingness to proceed only on the claims found to be cognizable by the Court. Plaintiff elected to file a second amended complaint on June 29, 2010, and this action was reassigned to the undersigned on March 23, 2011.

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.

II. Summary of Plaintiff's Second Amended Complaint

A. Allegations

Plaintiff was validated as a prison gang member in 2000 at High Desert State Prison in Susanville. Plaintiff was assessed an indeterminate Security Housing Unit (SHU) term and transferred to California State Prison-Corcoran in 2001 to serve that term. In 2004, Plaintiff was re-validated, but the paperwork that was submitted to approve another indeterminate SHU term was rejected because one of the source items used to re-validate Plaintiff had been expunged from his central file. Plaintiff was placed in administrative segregation (ad-seg) until he was re-validated in 2006 and assessed another indeterminate SHU term based on that re-validation.

Plaintiff challenges his re-validation on the ground that he was not provided with the opportunity to be heard. Plaintiff also challenges a subsequent proceeding relating to "inactive status" as conducted without some evidence to support gang activity. As explained in greater detail below, the precise nature of that claim is unclear.

B. Due Process ...


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