The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
On December 31, 2009, Plaintiff Eddie Salazar, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.) Plaintiff's Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF COMPLAINT
The Complaint alleges that the following named Defendants violated Plaintiff's constitutional rights: (1) Sullivan, former Warden, California Correctional Institution, Tehachapi ("Tehachapi"); (2) Gonzales, current Warden, Tehachapi; (3) T. Schwartz, Director; (4) M. Carrasco, Chief Deputy Warden; (5) D. Pierce, Correctional Counselor; (6) M. Pailo, Correctional Counselor; and (7) John Does one through fifty.
Plaintiff alleges the following: On December 5, 2006, Plaintiff was placed in segregated housing pending a hearing after being attacked. (Compl. at 5.) At the hearing on December 14, 2006 Defendant Carrasco asked Plaintiff if he was ready for protective custody. Defendant Carrasco reminded Plaintiff that his attackers had tried to kill him, that he thus owed no loyalty to anyone, and that there was no "going back" now. Defendant was trying to persuade Plaintiff to provide information regarding illegal activity. (Id.) That same day an interviewer from the Institution's Gang Investigator unit recommended to Plaintiff that he volunteer for protective custody and provide information. Plaintiff declined; the interviewer suggested negative consequences might ensue. (Id. at 6.)
On March 15, 2007 there was another hearing to review Plaintiff's segregated housing status. Again Plaintiff was asked to elect protective custody and provide information of illegal activity. Plaintiff suggested housing alternatives to protective custody. Defendant Carrasco responded that "if [Plaintiff] doesn't choice [sic] Sensitive Need Yard 'SNY' we will recommend . . . indeterminate [placement in the Segregated Housing Unit ('SHU')]." (Id.) At the following hearing on June 30, 2007, Defendant Carrasco delivered the same ultimatum to Plaintiff. "Plaintiff responded I don't have any relevant information and can be housed at certain institutions and facilitys [sic] that I supplied [the hearing panel] with. And reiterated I have no safety concerns." (Id.) The hearing adjourned until the next ninety day review of Plaintiff's housing status. (Id.)
On October 25, 2007 Plaintiff was transferred to the SHU without notification or hearing. Seven days later at his initial SHU review, the committee advised Plaintiff that the Departmental Review Board had concluded that Plaintiff's gang activity and disciplinary history warranted his placement in the SHU. (Id. at 7.) Plaintiff disputed these justifications and asked for an opportunity to formally challenge the decision. The "Committee stated that 'its, to late' . . ." and that Plaintiff "should of cooperated and chosen [protective custody] and now you will serve this SHU term [indefinitely]." (Id.)
Plaintiff has undergone multiple committee reviews on his SHU placement. Each time the Committee endorsed continuing SHU housing without making an individualized finding as to whether Plaintiff posed a threat to himself, others, or the security of the institution. (Id. at 8.) The Defendants placed Plaintiff in the SHU to harass him and retaliate against him for not volunteering information about illegal activity. (Id. at 7, 8.)
Defendant Dailo has refused to consider mitigating evidence. (Id. at 12.) Plaintiff has submitted multiple appeals which have been ignored by Defendants Sullivan and Carrasco. (Id.) Defendants Sullivan and Gonzales failed to train subordinate staff regarding harassment and retaliation. (Id. at 13.) The Defendants applied "underground" regulations in violation of the Administrative Procedure Act to assign Plaintiff an indeterminate SHU term. (Id.)
Plaintiff alleges that the aforementioned conduct violated his Fourteenth Amendment Due Process rights and that conditions in the SHU violate the Eighth Amendment's prohibition against cruel and unusual punishment. (Id. at 14-16.) Plaintiff, who is Hispanic, further alleges that Defendants discriminate against Hispanics by presuming Hispanics' misconduct is gang-elated. The Defendants do not make the same presumption about other ethnic groups. As a result, Hispanics are disproportionately given SHU terms in violation of Equal Protection. (Id. at 13, 14.) The Court will address these claims below.
To state a claim under Section 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person acting under the ...