The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On August 8, 2011, Kingsley LaJohn Wright ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 28 U.S.C. § 1983 ("Complaint").
On September 1, 2011, the Court issued a Memorandum and Order Dismissing Complaint With Leave to Amend.
On September 16, 2011, Plaintiff filed a First Amended Complaint ("FAC").
In accordance with the provisions governing in forma pauperis proceedings, the Court must screen the complaint before ordering service to determine whether the action:
(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). This screening is governed by the following standards:
A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "'[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'" Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide "more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the "speculative level," Twombly, 550 U.S. at 555, or the merely possible or conceivable. Id. at 557, 570.
Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents enough facts "to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, ___U.S. ___, 129 S. Ct. 1937, 1949 (2009). This standard is not a probability requirement, but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts that are merely consistent with liability stops short of the line between possibility and plausibility. Id.
In a pro se civil rights case, the complaint must be construed liberally to afford plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
After careful review and consideration of the FAC under the relevant standards and for the reasons discussed below, the Court finds that theFAC should be DISMISSED WITH LEAVE TO AMEND.
Plaintiff alleges that, on January 11, 2011, he was transferred to the California State Prison-Los Angeles County ("CSP-LAC"), a facility "out of [his] security level." (FAC at 5(B).) Due to prison overcrowding, he initially was placed in the Administrative Segregation Unit ("ASU") until bed space became available, where he "had to be subjected to the 'harsh' realm of that placement." (Id.) Plaintiff filed an administrative grievance complaining about his transfer to CSP-LAC and placement in the ASU. (Id.) In February 2011, Plaintiff was placed in a cell on a Level IV yard, even though he was a Level III inmate. (Id.) Plaintiff was placed in a cell with a "disturbed inmate and the cell was 'red flagged' meaning that the inmate has caused problems in the cell (fires, flooding, contraband) and he was a 'lifer' never getting out." (Id.) On May 16, 2011, Plaintiff was sexually ...