The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS (ECF No. 10)
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 consented to Magistrate Judge jurisdiction. (ECF No. 6.)
Plaintiff's Complaint (ECF No. 1) was screened and dismissed, with leave to amend, on October 4, 2011, for failure to state a cognizable claim. (ECF No. 9.) Plaintiff's First Amended Complaint is now before the Court for screening. (ECF No. 10.)
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 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, Deputy Director; (4) M. Carrasco, Chief Deputy Warden; (5) Pierce, Correctional Counselor; (6) Dailo, Correctional Counselor; (7) John Doe # 1, Institution Gang Investigator ("IGI") Sgt.; (8) John Doe # 2, Correctional Counselor; (9) John Doe # 3, Facility Captain; (10) John Doe # 4, Facility Captain; and (11) John Doe # 5, Chief Classification Services Unit.
Plaintiff alleges the following:
On December 5, 2006, after being attacked, Plaintiff was placed in segregated housing pending a hearing. (Compl. at 4.) On December 10, 2006, Plaintiff attended a committee hearing discussing whether he needed to stay in segregated housing. (Id.) Plaintiff opined that the attack resulted from a simple misunderstanding. Defendant Carrasco, a committee member, asserted that the attack was related to illicit activity. (Id.) Carrasco issued Plaintiff an ultimatum: Plaintiff could either voluntarily enter protective custody and provide information regarding illegal activity at Tehachapi (i.e., debrief) or remain in segregated housing and likely be transferred to the Security Housing Unit ("SHU"). Plaintiff's desire to be placed back into the general prison population was not an option. (Id. at 5.)
Plaintiff was interviewed by Defendant John Doe # 1, IGI Sgt. on December 14, 2006. When Plaintiff continued to maintain that the attack was merely an incidental fight, Doe # 1 stated that unless Plaintiff debriefed, Doe # 1 would report Plaintiff as uncooperative and "negative consequences" would result. (Id. at 5, 6.)
On March 15, 2007, Plaintiff attended a committee hearing and pled his case. He felt that further retention in administrative segregation would be unhealthy. He argued that he could function at other facilities without incident. Carrasco informed Plaintiff that he was being "referred to the Departmental Review Board (DRB) for an indeterminate [SHU] program for refusing to coorperate [sic] with investigation and not desiring protective custody." (Id. at 7.) The committee stated that approval of a SHU term would take place at the Departmental Review Board and could take some time. (Id.)
Plaintiff thereafter attended at least three more committee hearings. Defendants Carrasco, John Doe # 3, and John Doe # 2 verbally abused Plaintiff by repeatedly referring to their authority and implying that Plaintiff was withholding information of illicit activity. (Id. at 8.) These Defendants advised Plaintiff that his objections should be forwarded to another agency because the committee no longer had Plaintiff's "case factor." (Id.)
On or about October 31, 2007, Plaintiff was transferred to the SHU and went before its committee for orientation. "During the orientation committee hearing the members addressed Plaintiff that he was issued a indeterminate SHU term by Departmental Review Board (DRB) on grounds of potential gang activity, disciplinary history behind being assulted [sic] and hispanic culture ideoligies [sic] that the assault will be exploiting the inmate to these activities to gain back favor with hispanics." (Id. at 9.) The committee refused to hear Plaintiff's protest because a final decision had been made by the Departmental Review Board and the SHU hearing was for orientation purposes only. (Id.)
Defendant Dailo, Plaintiff's housing counselor in the SHU, repeatedly rebuffed Plaintiff's objections to his continued housing in the SHU and told Plaintiff to stop complaining. (Id. at 10, 11.) Plaintiff attended a committee hearing on April 30, 2008, and attempted to address the basis relied upon by the DRB for his indeterminate SHU term. John Doe # 4 had Plaintiff removed from the hearing because he was not prepared to debrief. (Id. at 11.) Defendant Pierce later ...