The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. Docket # 7 (filed on December 20, 2010). By order, filed on February 9, 2011, the complaint was dismissed with leave to amend. Plaintiff has filed an amended complaint.
As plaintiff has been previously informed, 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 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).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Franklin v. Murphy, 745 F.2d 1221, 1227-28
(9th Cir. 1984). The court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory
or where the factual contentions are clearly baseless. Neitzke, 490
U.S. at 327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin,
745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
In amending his complaint, plaintiff has made some effort to comply with the court's order. Although he filed an amended complaint which includes exhibits in a filing of 104 pages when he was directed not to exceed thirty pages in any amended complaint, plaintiff does keep the body of the complaint to thirty pages. Moreover, plaintiff at the outset has limited this action to twelve defendants, although at one point he undercuts this by stating that he has some 85 defendants. See Complaint, pp. 13-14.*fn1 Plaintiff does identify twelve defendants with one additional defendant named in the body of the allegations who is not identified specifically under "parties" as a defendant (Riley). The court will disregard plaintiff's anomalous reference to 85 defendants. In addition, plaintiff continues, as pointed out in the undersigned's earlier order, to assert unrelated claims against different defendants, presenting something of a "mishmash" of allegations. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("[u]nrelated claims against different defendants belong in different suits").
Although plaintiff has made an effort to simplify his claims, they are still not altogether coherent. The gravamen of his amended complaint appears to be a purported equal protection claim. Plaintiff begins by stating that on February 21, 2009, while working in the prison dining hall, he became the victim of an unprovoked stabbing by a prisoner of similar ethnicity, following which he was transported to the UC Davis Trauma Center for treatment. Complaint, p. 14 & Exhibit (Ex.) A. On that day, his property was packaged and inventoried for storage by correctional officers (C/O's) Jenkins and Williams, not parties to this action, to be stored while plaintiff was in the ASU [administrative segregation unit]. Id. & Ex. B. The next day, plaintiff was discharged from the hospital; during his absence, defendant Weaver had placed plaintiff in segregation lockup pending further administrative review and possible action. Id. at 15 & Ex. C. After his discharge, defendant Mata inquired as to plaintiff's ethnicity and affiliation during classification, to which plaintiff responded that he was classified as "other" and had no affiliation "with any prison organization and hangs by himself." Id. & Ex. D. Plaintiff alleges that the dining hall officer had correctly identified plaintiff as Hispanic. Id. Also on or about Feb. 22, 2009, a 128C mental health form was generated indicating plaintiff had no current psychiatric, emotional or mental health problems, thus clearing him for placement in administrative segregation (Ad Seg).*fn2 Id. & Ex. E. On or about March 3, 2009, while plaintiff had a follow-up at UCD Medical Center, in his absence, defendants Dickinson, Mitchell, Hurtado and Siriley had a 128 G hearing and determined "plaintiff would remain in segregation pending an investigation into potential enemy safety concerns." Id. & Ex. F. Plaintiff notes that CAL. CODE REGS. tit.xv, § 3320(g) states an inmate shall be present at a disciplinary hearing. Id. (However, this appears to refer to misconduct reported on a CDC Form 115, i.e. a serious rules violations report/hearing, while this was a 128 G committee action to retain plaintiff in ASU pending an investigation into enemy safety concerns which it was noted plaintiff could not attend due to his being treated in an outside hospital, and even in a prison disciplinary context, there are listed exceptions to an inmate's attendance). In addition, plaintiff contends, an inmate has the right to request an investigative employee under CAL. CODE REGS. tit.xv, § 3315(d), staff assistance under § 3318(b), and witnesses under § 3315(e). (Again each of these provisions appear to apply in the context of a 115 hearing, not applicable here).
Plaintiff alleges that defendants Dickinson, Mitchell, Hurtado and Riley,*fn3 ICC Committee members, racially profiled and discriminated against him based on his skin complexion, assuming him to be associated with African Americans and ignoring his C-file assertion that plaintiff was classified as "other" in his affiliation. Complaint, p. 16 & Ex. G. (The exhibit plaintiff references is a copy of a response from defendant Dickinson, which inter alia, indicates that he is identified on his legal status summary and in the distributed data processing system as Cuban and not black). Plaintiff again contends that holding an ICC hearing in his absence without a waiver denied him his right to call a witness, etc. Id. However, the response at Ex. G indicates that at an ICC hearing on Oct. 7, 2009, plaintiff refused to participate or make a statement so that his case was reviewed in absentia noting an investigation which indicated plaintiff had ongoing enemy concerns at California Medical Facility (CMF). Id., Ex. G. Plaintiff claims that his safety was put at risk by his being deliberately misclassified and by defendants "inferencing [sic] to the interviewed prisoner(s) he had crossed racial lines." Id. at 16. Plaintiff states that classification and categorizing of prisoners is the custom and practice of CDCR. Id.
Plaintiff alleges that during an ICC hearing on or about March 3, 2009, defendant Mata submitted an 128-B informational chrono indicated that he had interviewed several general population inmates about plaintiff's safety and allegedly plaintiff was affiliated with black inmates, specifically the informational chrono, signed by Mata, states:
On February 21, 2009, Inmate Calderon (V-53896) and Poye (F-81865) were involved in a fight in Dining hall # 2. As a result, Poye sustained a puncture wound in the upper chest area.
I interviewed several inmates in the general population regarding
Poye's safety, should he return to the mainline. During the interviews, I discovered although Poye is listed as Cuban, he runs with the Blacks. It was suggested by the inmate population that it would not be a good idea to have either of the inmates return to CMF's mainline as it may pose a bigger problem between the blacks and Southern Hispanic population.
Although it is believed that the altercation stemmed from an argument, I would recommend both Calderon and Poye be ...