The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFFS'S COMPLAINT FOR FAILURE TO STATE A CLAIM (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Meritt Webb ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on May 24, 2011. (Compl., ECF No. 1.) Plaintiff's Complaint is currently before the Court for screening. No other parties have appeared in this action. The Court finds that Plaintiff's Complaint fails to state a claim. He will be given leave to file an amended complaint.
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 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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff is a state prisoner currently confined at Calipatria State Prison. Plaintiff was previously confined at California Correctional Institution at Tehachapi, California ("CCI"). He brings this action alleging violations of his rights under the First and Fourteenth Amendments. Plaintiff also alleges claims of conspiracy. Plaintiff names the following individuals as defendants: 1) Fernando Gonzales, CCI Warden, 2) Jerry Negrete, Former CCI Acting Chief Deputy Warden, 3) M. Hetzel, CCI Lieutenant, 4) T. Stankorb, 602 Appeals Coordinator at CCI, 5) K. Sampson, 602 Appeals Coordinator at CCI, 6) M. Bryant, Correctional Lieutenant at CCI, 7) E. Stelter, Correctional Counselor II at CCI, 8) M. Nipper, Correctional Counselor I at CCI, 9) Solis, Correctional Officer at CCI, 10) Deleon, Correctional Officer at CCI, and 11) D. Zanchi, Correctional Facility Captain at CCI. All of the Defendants are named in their individual and official capacities.
Plaintiff asks for nominal, compensatory, and punitive damages, all in amounts to be determined by the jury.
Plaintiff alleges as follows:
Plaintiff was a member of the Men's Advisory Council ("MAC") while at CCI and during the time relevant to this Complaint. (Compl. at 3.) As a result of his MAC activities, Defendants engaged in a conspiracy to violate Plaintiff's First Amendment rights by retaliating against him and to violate his Fourteenth Amendment rights by placing him in Administrative Segregation ("Ad-Seg"). (Id. at 3-17.)
Plaintiff submitted a written complaint to Chief Deputy Warden Holland regarding Defendant Zanchi's failure to follow through on some of the promises he made to MAC members. (Id. at 3-4.) The promises related to privileges being offered to the general population inmates at CCI 4A and then rescinded. (Id. at 4.) Defendant Zanchi attended the MAC meeting held after Plaintiff filed his complaint, along with Defendant Negrete, the CCI 4A associate warden. (Id.) Defendants Zanchi and Negrete talked to Plaintiff about his complaint. (Id.)
On June 29, 2009, Defendant Zanchi, as well as Defendants Solis and Deleon attended a meeting with housing block 3, where Plaintiff was housed. (Id.) Plaintiff, as a MAC representative, presented a complaint on behalf of the general populations inmates in housing block 3. (Id.) The complaint raised issues regarding razors, participation in programs, telephone access, and payment to porters. (Id.) Defendants Solis, Deleon, and Zanchi were angered by Plaintiff's complaints, and Defendants Solis and Deleon agreed with Defendant Zanchi when he said "We'll see where all this complaining gets you!" (Id.)
After the meeting, Plaintiff returned to his cell where his cell-mate,
Lenell Brooks, was asleep. (Compl. at 4.) Soon after Plaintiff
returned to his cell, his cell-mate and the other housing block 3
culinary workers were summoned to report to their job assignments.
(Id.) On their way to their job assignments, Plaintiff's cell-mate and
others were assaulted by Defendants Solis and Deleon.*fn1
(Id.) The assault on Plaintiff's cell-mate was a result of
Plaintiff's MAC activities. (Id. at 8-9.) The assault led Plaintiff to
believe he could be subject to retaliatory acts as a result of his 602
filings. (Id. at 9.)
After the meeting and assault on his cell-mate, Plaintiff was placed in Ad-Seg. (Compl. at 5.) Plaintiff was placed in Ad-Seg because prison officials allege he incited his cell-mate to assault a prison staff member. (Id.) Specifically, a Lieutenant Ellissague told Plaintiff that Defendant Zanchi had informed him that Plaintiff had incited his cell-mate to assault prison staff. (Id.) On July 1, 2009, Defendant Zanchi determined that Plaintiff should be placed in Ad-Seg based on information that he had provided himself. (Id.) Defendant Zanchi did this to exclude Plaintiff from his MAC duties. (Id.)
Plaintiff's initial classification committee review occurred on July 9, 2009. (Compl. at 5.) Committee members included Defendant Zanchi, Negrete, and Nipper. (Id.) These individuals were part of a "continual collective conspiracy," and were trying to exclude Plaintiff from his MAC activities, thereby committing illegal retaliation under the First Amendment. (Id.) They also violated Plaintiff's Fourteenth Amendment rights by subjecting him to Ad-Seg placement, which constitutes a significant, atypical hardship. (Id.) They concluded that Plaintiff should be placed in Ad-Seg for sixty days, until a pretextual unit investigation could be completed. (Id.) This did not meet the "some evidence" standard. (Id.)
Plaintiff submitted a 602 appeal on July 21, 2009 to Defendant Gonzales, CCI 4A Warden. (Compl. at 6.) The 602 grievance was received in his office on July 23, 2009, and in the grievance, Plaintiff complained of retaliation by Defendants Solis, Deleon, and Zanchi. (Id.) In this grievance, Plaintiff also complained of the committee decision to continue to keep Plaintiff in Ad-Seg. (Id.) Defendant Sampson later told Plaintiff that the Appeals Office had never received Plaintiff's July 23, 2009 602 grievance. (Id. at 8.)
The unit investigation, conducted by Defendant Hetzel, occurred on July 28, 2009. (Compl. at 6.) She was also part of the collective conspiracy. (Id.) Defendant Hetzel refused to interview witnesses who could exonerate Plaintiff in retaliation for Plaintiff's wish to name her in a grievance and to further the "conspiracy and retaliation." (Id.) Plaintiff told Defendant Hetzel that he had not spoken to his cell-mate when he returned to his cell after the June 28, 2009*fn2 meeting, because his cell-mate was asleep. (Id.) According to her job description, Defendant Hetzel should have reported her findings to her supervisor, Defendant Bryant. (Id. at 7.)
Plaintiff submitted another 602 appeal on July 28, 2009, the same night that Defendant Hetzel conducted her investigation. (Compl. at 6.) In this grievance, Plaintiff alleged that Defendant Hetzel was unprofessional during the investigation because she refused to properly identify herself. (Id.) Plaintiff alleged that she did this so that Plaintiff could not name her in a complaint. (Id.) This appeal was screened out by 602 Appeals Coordinator, Defendant Stankorb. (Id. at 7.) By doing so, Defendant Stankorb joined in the collective conspiracy to violate Plaintiff's rights under the First and Fourteenth Amendments. (Id.) He failed to investigate Plaintiff's allegations of conspiracy and retaliation. (Id.)
After this appeal was returned to Plaintiff, he resubmitted it on August 12, 2009, with a request for an interview. (Compl. at 7.) It was again screened out by 602 Appeals Coordinator, Defendant Sampson. (Id.) By doing so, Defendant Sampson joined in the collective conspiracy to violate Plaintiff's First and Fourteenth Amendment rights. (Id.)
Plaintiff resubmitted this appeal for a third time, and it was again screened out on August 25, 2009. (Compl. at 8.) Plaintiff was told by Defendant Sampson to file a 602 on his Ad-Seg placement and place a copy of the 138-G from the ...