COMPLAINT DISMISSED WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER
Plaintiff Alfredo Gonzalez ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 20, 2010. (ECF No. 1.) No other parties have appeared.
Plaintiff's Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff failed to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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). "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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff alleges that his First Amendment rights were violated by Defendants' retaliatory conduct, that his due process rights were violated, and that he was denied access to the courts. Plaintiff names the following individuals as Defendants: A. Diaz, R. Davis, R. Chavez, R. Schneider, I. Bueno, T. Cano, L. Nelson, J. Jones, M. Junious, and N. Grannis.
Plaintiff alleges the following: On April 16, 2008, Plaintiff was placed in administrative segregation ("ad-seg") for possession of an inmate manufactured weapon. Plaintiff appeared before the Institutional Classification Committee ("ICC") for his initial hearing on April 25, 2008. Defendant Diaz was the acting captain. On May 23, 2008, Plaintiff had a rule violation report ("RVR") hearing where Diaz was the senior hearing officer. Plaintiff was found guilty of possession of a weapon. Plaintiff filed a grievance in response to the guilty verdict and Diaz's participation in both of his hearings. On June 26, 2008, Plaintiff appeared before the ad-seg ICC and was assessed an indeterminate term in the secured housing unit ("SHU").
On October 1, 2008, Plaintiff and other inmates were placed in holding cages to be processed for a transfer to the SHU. The inmates' property was also being processed; however, Plaintiff's property was not present or being processed. Plaintiff asked Diaz about his property. Diaz responded that Plaintiff would get his property when he stopped filing 602s.
Plaintiff did not receive an ICC hearing within ten days of his arrival, nor did he receive a hearing within thirty days of the expiration of his MERD. On December 15, 2008, Plaintiff received a 114d from Defendant Schneider that stated, in part, that Plaintiff was being retained in SHU for an indeterminate term and would appear before ICC on December 18, 2008. Plaintiff told Schneider that his due process rights were being violated as his MERD was December 1, 2008. Schneider responded that Plaintiff should not have filed so many 602s.
On December 18, 2008, Plaintiff appeared before the ICC. He was issued an indeterminate SHU term and said to be a threat to the safety and security of the institution. Plaintiff told the ICC, composed of Defendants Davis, Chavez, Schneider, and Bueno, that he had not received the required hearing prior to this one. Davis told him to file another 602. Plaintiff filed a grievance against the ICC on December 10, 2008.
Plaintiff still did not have his personal property, so he filed a grievance. As Plaintiff was being prepared for a transfer, his property was "transpacked" by SHU staff on June 8, 2009. Plaintiff informed SHU staff that he had other property in a different building that also needed to be transferred. Plaintiff's property was located and he was told that it would either be on the bus with Plaintiff for the transfer the following day or it would be sent in three to four weeks. Plaintiff was transferred on June 9, 2009. Plaintiff's personal property was finally returned to him on October 5, 2009; however, books were still missing.
Plaintiff seeks declaratory relief, compensatory, exemplary, and punitive damages among other listed relief.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff states that he is being retaliated against by Defendants Davis, Chavez, Schneider, Bueno, Diaz, Nelson, Cano, and Jones for exercising his constitutional rights.
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff has failed to plead facts sufficient to sustain a claim of retaliation by prison officials. Plaintiff states that all Defendants were retaliating against him because of his filing of grievances. Plaintiff claims that Defendants Davis, Chavez, Schneider, and Bueno retaliated against him by refusing him an ICC hearing and by giving him an indeterminate SHU term. Plaintiff claims that Defendant Diaz retaliated against him by keeping his personal property from him. Plaintiff claims that Defendants Nelson, Cano, and Jones retaliated against him by inappropriately screening out Plaintiff's grievances.
Filing a grievance is a protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Refusing a hearing and an indeterminate SHU sentence would be adverse actions. Keeping Plaintiff's personal property from him would be an adverse action. Inappropriately screening out Plaintiff's grievances would also be an adverse action. Thus, Plaintiff has satisfied the first and third prongs of the retaliation standard as to all eight Defendants.
With respect to the fourth prong, "[it] would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity . . . ." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). Though Plaintiff has failed to plead any facts as to whether he was chilled because of the ...