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. 1)
Plaintiff Guillermo Garcia ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Defendant McCue removed this action from Tuolumne County Superior Court on November 9, 2010. On November 10, 2010, Defendants Mix and Saylor joined in the removal.*fn1 Plaintiff's motion to remand was denied on October 4, 2011.
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)).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at the Correctional Training Facility in Soledad. Plaintiff alleges that, while he was confined at Sierra Conservation Center, Defendant Mix conducted a cell search and took Plaintiff's property without giving him a receipt, and the property was "taken lost, stolen, damaged or destroyed." Plaintiff states he was threatened by Defendant Mix.
Plaintiff claims that Defendant Paugh conspired with Defendant Mix to take possession of Plaintiff's personal property and that the search was for the purpose of retaliation and was cruel and unusual punishment in violation of the Eighth Amendment to punish and harass Plaintiff. Defendant Mendoza, as the tower officer, conspired with Defendants Mix and Paugh, and opened the cell door to allow them to enter Plaintiff's cell when they were not assigned to his building.
Plaintiff states that he was deprived of his right to access the courts by Defendant McCue when he requested a court call to make a telephonic appearance in Los Angeles Superior Court on August 22, 2008. Defendant McCue did not respond to Plaintiff's request so he was unable to appear for his telephonic conference and case No. BC-356199 was dismissed. Plaintiff alleges that Defendants Saylor and Pate conspired with Defendant McCue to prevent him from appearing at the telephonic conference in violation of the First and Fourteenth Amendments. Plaintiff is seeking compensatory and punitive damages.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.
A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of retaliation in violation of the First Amendment consists of five elements: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonable advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). Although Plaintiff alleges that Defendant Mix searched his cell and his property was taken as a retaliatory act, Plaintiff's complaint is devoid of any allegation that the cell search was because he had engaged in protected conduct. While Plaintiff alleges that Defendants Paugh and Mendoza conspired with Plaintiff in the cell search, Plaintiff has not alleged any specific facts linking their participation to an ...