The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE RETALIATION CLAIMS AGAINST DEFENDANTS EPSTEIN AND GONZALES (Doc. 8) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Bruce Patrick Haney, a state prisoner proceeding pro se, filed this civil rights action in Kings County Superior Court on June 23, 2010. Defendants Epstein, Rodriguez, Shelton, Gonzales, Jennings, Comaites, and Vella (Defendants) removed the action to this court on August 19, 2010.*fn1 28 U.S.C. § 1441(b). Pending before the Court is Plaintiff's amended complaint, filed on October 6, 2010. Fed. R. Civ. P. 15(a).
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).
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.
Under section 1983, 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 is incarcerated at California State Prison-Corcoran and he brings this action against Correctional Officers L. Epstein, D. Sheldon, and R. Rodriguez; Sergeant J. Gonzales; Captain M. Jennings; Associate Warden K. Comaites; Chief Deputy Warden R. Vella; Appeals Examiner K. J. Allen; Chief Appeals Coordinator D. Foston; and S. Wortman, vice principal of the education department. Plaintiff alleges numerous claims for relief, but his claims arise in the main from retaliation against him for filing lawsuits against prison officials.
A. Defendants Epstein, Sheldon, and Rodriguez
On October 1, 2009, Defendants Epstein, Sheldon, and Rodriguez searched Plaintiff's cell while he was on the recreation yard and destroyed a CD player, trashed his personal property, and took a pair of his tennis shoes. When Plaintiff asked Defendant Epstein why he destroyed Plaintiff's property, Defendant told him it was punishment. Plaintiff asked for his tennis shoes back and Defendant Epstein told him they were confiscated because he had two pairs. When Plaintiff said that pursuant to operational procedure 806, he should be allowed to choose which property to discard to bring his property into compliance with the rules, Defendant Epstein said Plaintiff should not go around filing lawsuits against officers.
Plaintiff alleges that his property was destroyed to harass and retaliate against him for exercising his First Amendment right to petition the government, and that the confiscation of his property violated the United States Constitution and the California Code of Regulations. Plaintiff further alleges that although Defendants Epstein and Sheldon claimed that Plaintiff's cell was searched to determine if Plaintiff's cellmate had all of his legal property, Plaintiff's cellmate was present during the search and he was never asked if he had his legal property that he claimed was missing and his property was not searched. Plaintiff alleges that he knows Defendants Sheldon and Rodriguez retaliated against him because of Defendant Epstein's comments.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 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) (quotation marks omitted); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
Plaintiff's allegation that his property was confiscated and destroyed as punishment for filing lawsuits against officers is sufficient to state a claim against Defendant Epstein, who made the comments relating to improper motive. However, although Defendants Sheldon and Rodriguez participated in the cell search, Plaintiff has not alleged any specific facts linking their participation to an improper motive. The bare fact that they participated in the ...