The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)
Plaintiff, Kenji Barnett, is a state prisoner proceeding pro se and in forma pauperis. He has filed this civil rights action pursuant to 42 U.S.C. § 1983 to challenge his placement in the Special housing Unit ("SHU") due to Defendants' determination that he is a gang member.
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, 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)), 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, 556 U.S. at __, 129 S.Ct. at 1949.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Iqbal, 556 U.S. at __, 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, 556 U.S. at __, 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, 556 U.S. at __, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
II. Plaintiff's Complaint
A. Summary of Allegations
Plaintiff was validated as a prison gang member of the Black Guerilla Family ("BGF") in 2008 at the Ironwood State Prison in Blythe, California and assessed an indeterminate term in the SHU. (Doc. 1 at 7.) Plaintiff challenges the initial validation decision, and subsequent decisions by several Institutional Classification Committees, as well as administrative appeal decisions addressing his claims regarding the prison's validation procedures. (Id. at 7-11.) More specifically Plaintiff alleges as follows: On May 12, 2008, Defendant Covello placed Plaintiff in segregation lock-up following the conclusion of a five day investigation into Plaintiff's status as an associate of the Black Guerilla Family ("BGF"). (Doc. 1 at 7.) Some time shortly after this initial placement, Plaintiff was provided copies of evidence and a form with which to provide a written rebuttal. (Id. at 8.) However, Plaintiff was never personally interviewed by either Defendants D. Williams or G. Williams or any other prison officials or provided an opportunity to dispute the information in person prior to the decision to validate Plaintiff as a BGF member. (Id. at 8.)
On May 15, 2008 Defendants Berwer, Burt, and Kiser (members of the Office of Correctional Safety ("OCS")) reviewed Plaintiff's validation packet and found the following three source items in support of his validation including : (1) Plaintiff's tattoos associated with the BGF; (2) a piece of paper with the name and the California Department of Corrections and Rehabilitation ("CDCR") number of a validated BGF member discovered during a search of Plaintiff's personal property; and (3) written materials utilized for training and recruitment with the BGF also discovered during the search of Plaintiff's personal property. (Doc. 1 at 7, 50.) In light of these findings, on May 15, 2008, the OCS staff validated Plaintiff as an associate of the BGF. (Id. at 7.)
On May 21, 2008, Plaintiff appeared, at his initial Institutional Classification Committee ("ICC") hearing, where Defendants Dexter, Payton, McDowell, and Browder determined that Plaintiff placement in the SHU for an indeterminate term was warranted and further recommended that he be transferred to either Pelican Bay State Prison or Corcoran State Prison. (Doc. 1 at 7-8.)
Plaintiff's SHU status has subsequently been reconsidered by multiple committee review hearings. (Doc. 1 at 8-9.) At each review, the Committee endorsed Plaintiff's continued SHU housing and ignored Plaintiff's disagreement with the findings. (Id. at 8.) Plaintiff asserts that Defendants Cate, (CDCR Director), Dexter, and Gonzalez (Wardens at CCI and Ironwood State Prison respectively), "supported" the validation and subsequent decisions of prison employees and that all "Supervisory" Defendants participated in the formulation and enforcement of policies regarding the validation process. (Doc. 1 at 12.)
Plaintiff contends that the tattoos and confiscated items of personal property are legitimate expressions of speech and do not violate either CDCR rules or state or federal constitutions. (Doc. 1 at 11, 22, 23.) Additionally Plaintiff asserts that the evidence in support of the investigator's validation findings was both unreliable and insufficient to meet requirements established in 15 CCR § 3378 as well as those provided under the "Castillo Settlement Written Manual." (Id. at 10.) Plaintiff also contends Defendants' actions constitute both retaliation for his religious beliefs and discrimination in that the validation process is "inherently racist to African Americans and Hispanics." (Id. at 10, 16 & 17.)
Based on these allegations, Plaintiff asserts claims for relief under section 1983 for violation of the First and Eight Amendments and the Due Process and Equal Protection Clauses of the Fourteenth Amendments; for violation of section 1985 for conspiracy to deprive Plaintiff of his constitutional rights; and for violations of state constitutional law and the penal code regulations.
III. Deficiencies in Plaintiff's Complaint
A. Section 1983 Linkage Requirement
Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934. In other words, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. This linkage requirement mandates that Plaintiff name an individual defendant for each alleged violation so that the actions of each officer is clearly outlined. Government officials may not be liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing the official has violated the Constitution through his own individual actions. Id. at 1948. Finally, the presentation of factual allegations must be sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Here Plaintiff has failed to sufficiently identify sufficient facts showing any of the "supervisory" Defendants violated the Constitution through their own individual actions. Mere supervision of individuals responsible for a violation is not enough. In addition, the Complaint lacks factual allegations to sufficiently connect the other named Defendants to any of the alleged constitutional violations. The Court will grant Plaintiff leave to amend his complaint in this regard. To so do he needs to set forth ...