ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. Presently before the court is plaintiff's third amended complaint.
Plaintiff filed an initial complaint on March 5, 2009. Dckt. No. 1. Thereafter, he filed a motion to amend the complaint. Dckt. No. 9. The court founds that, for the limited purposes of § 1915A screening, the two documents, read together as an amended complaint, stated cognizable claims for relief against defendants Swingle, Medina, Barker, and Reglie. See 28 U.S.C. § 1915A. Dckt. No. 15. Thereafter, defendants Swingle, Medina and Barker were served with process. Dckt. No. 36.
On June 14, 2010, plaintiff filed a second amended complaint. Dckt. No. 34. On January 7, 2011, the court found that the second amended complaint stated potentially cognizable claims that defendants Swingle, Medina, Barker, Luther, and Harper were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment and that defendant Burgett retaliated against plaintiff for filing inmate appeals by confiscating plaintiff's wheelchair. The court further found that the remaining additional claims asserted in the second amended complaint, including those against Wilcox and Blanthorn, were deficient. The court gave plaintiff 30 days to either submit materials for service on the unserved defendants or to file an amended complaint attempting to cure the deficiencies identified by the court.
The court also declined to screen the complaint for claims against defendant "Wregly" or "Reglie," because it had recommended that such defendant be dismissed from this action without prejudice because plaintiff, despite warnings from the court, failed to provide accurate instructions for service of process upon this defendant. Dckt. No. 49 at 3 n.1. On January 31, 2011, the district judge adopted that recommendation and dismissed defendant Reglie from this action, without prejudice. Dckt. No. 52.
After plaintiff failed to comply with the January 7, 2011 screening order directing plaintiff to either submit the materials necessary for service on defendants, or to file an amended complaint, the court recommended that the unserved defendants and the deficient claims identified in the January 7, 2011 order, be dismissed without prejudice. Dckt. No. 34.
Shortly thereafter, plaintiff objected to that recommendation and filed a third amended complaint. Plaintiff claims he was transferred to another prison, did not have access to his legal property, and that he had attempted to file a request for an extension of time. Dckt. No. 57. Accordingly, the court will vacate the March 11, 2011 findings and recommendations and screen plaintiff's third amended complaint.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
The third amended complaint is nearly identical to the second amended complaint. It states potentially cognizable claims that defendants Swingle, Medina, Barker, Luther, and Harper were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment and that defendant Burgett retaliated against plaintiff for filing inmate appeals by confiscating plaintiff's wheelchair. The only new allegations appear to be in paragraphs 54 through 57 which, liberally construed with the rest of the complaint, state a cognizable claim that defendant Lankford was also deliberately indifferent to plaintiff's medical needs when he allegedly falsified documents in an effort to deprive plaintiff of his wheelchair.
With the exception of paragraphs 54 through 57, the third amended complaint appears to be identical in all material respects to the second amended complaint, and thus, fails to correct the deficiencies in the remaining claims, including those against defendants Wilcox and Blanthorn. Those deficiencies were set forth as follows in the court's previous screening order:
Plaintiff alleges that after he complained about inadequate medical care, defendant Swingle retaliated against plaintiff by "committ[ing] racial and sexual misconduct against plaintiff." Dckt. No. 34, ¶¶ 25, 26. Plaintiff also alleges that on a different date, defendant Medina "retaliated" against plaintiff by "committ[ing] sexual misconduct on [plaintiff]." Id. ¶ 40.
While inmates have a federal right to petition for redress of grievances and to file suit without being subjected to retaliation, plaintiff's conclusory allegations do not support such a claim. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). To prove retaliation, plaintiff must show that a state actor took some adverse action against him because of his protected conduct, and that such action chilled the inmate's exercise of his First Amendment rights and did not reasonably advance a legitimate penological purpose. See Rhodes, 408 F.3d at 567-68 (9th Cir. 2005); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). Here, plaintiff's conclusory allegations do not support a finding that defendants Swingle or Medina engaged in racial or sexual misconduct against plaintiff, or that they took any actions because plaintiff participated in protected activities. Accordingly, these claims are dismissed with leave to amend.
Plaintiff alleges that defendant Blanthorn attempted to get Wregly to conspire with him to take plaintiff's wheelchair. Dckt. No. 34 at ¶ 45. However, plaintiff does not allege that Blanthorn took plaintiff's wheelchair or otherwise caused him any harm. As the allegations fail to show how Blanthorn personally participated in violating ...