The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM OBJECTIONS DUE WITHIN THIRTY DAYS (ECF No. 14)
Plaintiff Demitrius M. McClendon is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 11, 2011, an order issued dismissing the complaint, with leave to amend, for failure to state a claim. Currently before the Court is the first amended complaint, filed April 5, 2011. (ECF No. 1.)
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 and is incarcerated at the California Substance Abuse Treatment Facility ("CSATF"). Plaintiff brings this action against Defendants Mayfield, Suinani, and Does 1 through 10, in their individual and official capacities, for deliberately withholding his quarterly package in violation of the First and Fourteenth Amendments.
When Plaintiff enquired about his quarterly package from Defendant Mayfield he was told that it could not be located and that Plaintiff would be compensated. Tracking showed that the package was delivered to CSATF. Plaintiff alleges that Defendant Mayfield failed to train and supervise employees, and is liable because he is the immediate supervisor of receiving and release. Additionally, Defendant Mayfield was aware that Plaintiff's constitutional rights were violated because he told Plaintiff that he would be compensated for the loss.
Plaintiff did not receive compensation and filed several requests to find out why compensation was taking so long and an inmate grievance. Defendant Zuinani rejected Plaintiff's grievance stating that there had been too great a time lapse. Plaintiff provided evidence as to why the appeal was not time barred, but Defendant Zuinani did not consider the appeal. Plaintiff alleges that Defendant Zuinani failed to intervene when it was made known to him that Plaintiff's constitutional rights were violated in violation of due process.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff has previously been granted leave to amend his complaint, with guidance from the Court, and failed to cure the deficiencies in his amended complaint. Therefore it shall be recommended that this action be dismissed, with prejudice.