The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 10) THIRTY-DAY DEADLINE
Plaintiff Percy Stockton is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 23, 2010, an order issued dismissing the complaint, filed April 15, 2010, for failure to state a cognizable claim and granting Plaintiff an opportunity to file an amended complaint. (ECF No. 7.) Plaintiff filed an amended complaint on December 17, 2010. (ECF No. 10.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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).
"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the California Correctional Institution, Tehachapi. The first eight pages of Plaintiff's amended complaint is the complaint which the Court found failed to state a cognizable claim. In the following pages Plaintiff sets forth his amended complaint.
Plaintiff was confined to C-status from December 4, 2009 through January 26, 2010. While out of his cell for a medical and law library appointment, Plaintiff was involved in a fight with another inmate. Plaintiff alleges that he was placed in administrative segregation and falsely charged with assault on an inmate with a weapon. Defendant Tyson placed Plaintiff on C status based upon two rule violation reports which allegedly violated the California Code of Regulations, Title 15 section 3044(F)(c). Additionally, Plaintiff did not receive the required 72 hour notice that he would be taken before the UCC. Plaintiff states that he previously served a sixty day C status term for a false rules violation report which violates double jeopardy. Plaintiff was deprived of out of cell relief for sixty days.
Plaintiff alleges that after he was wrongly found guilty of assaulting an inmate with a weapon and placed on C status, Defendant Tyson instructed Defendants Accosta and Pittman to confiscate all Plaintiff's personal property, including property he was allowed to possess while on C-status. Plaintiff was left in his cell with only a bar of soap, toothbrush, tooth powder, towel, boxers, t-shirt, socks, mattress, and bedding. Plaintiff alleges that Defendants Tyson, Accosta, and Pittman conspired with Lt. Castro to unlawfully punish Plaintiff and that the placement in C status created an atypical and significant hardship upon him. Defendant Accosta refused to restore Plaintiff's time credits. Defendant Billings has wrongfully rejected over 100 of Plaintiff's inmate appeals. Plaintiff alleges violations of the First, Fourth, Eighth, and Fourteenth Amendments and seeks monetary relief.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Since Plaintiff has set forth new allegations and has not previously been given the legal standard, Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order for his First Amendment claims.
Plaintiff states Defendant Tyson retaliated against him by placing Plaintiff on C status while knowing that he had previously served a C-status term for the false rule violation report. However, Plaintiff fails to allege facts that adverse action was taken because of his protected conduct. Rhodes
v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Additionally there are no facts alleged that any action chilled the exercise of his First Amendment rights and did not reasonable advance a legitimate correctional goal." Rhodes, 408 F.3d at ...