The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS, WITHOUT LEAVE TO AMEND, AND DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 1) THIRTY-DAY DEADLINE
Plaintiff Russell King is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed November 29, 2010.
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 ("CDCR") and is currently housed at California State Prison, Los Angeles. Plaintiff brings this action against Defendants Waddle, Frazier, Serreno, Mills, Cervantez, Billings, and Foston alleging violations of the First, Fifth, and Fourteenth Amendments and is seeking a declaratory judgment, injunctive relief, and actual, nominal, and punitive damages.
On April 16, 2009, Plaintiff was transported from Kern Valley State Prison ("KVSP") to Delano Hospital. Pursuant to prison policy, Plaintiff's personal property was confiscated by Defendants Waddle, Frazier, Sereno, Mills, and Cervantez who informed Plaintiff that his property would be returned to him when he came back from the hospital. On April 29, 2009, Plaintiff returned to KVSP and requested that his property be returned to him. Sergeant Broudie stated that he could not find Plaintiff's property.
Plaintiff filed an inmate appeal that was screened out because Plaintiff did not include the Property Inventory Sheet with the appeal form. Plaintiff sent a request to Defendant Mills to find out what happened to his property. Defendant Mills responded that he placed Plaintiff's property in plastic bag with his CDCR number and name on it.
Plaintiff resubmitted his appeal, including the property sheet and received a response the he could seek reimbursement for his property at the second level. Plaintiff appeal was denied as violating Title 15 § 3193(a)(b). Plaintiff's third level appeal was screened out because he did not complete the second level of review.
Plaintiff alleges that he has been deprived of his right to petition the government for redress under the First Amendment by prison officials screening out his appeals. Plaintiff does not have a constitutionally protected right to have his appeals accepted or processed, Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), and actions in reviewing appeals cannot serve as ...