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 (ECF No. 1)
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL THIRTY-DAY DEADLINE
Plaintiff Jose H. Cervantes 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 March 7, 2011. (ECF No. 1.) On April 6, 2011, Plaintiff consented to the jurisdiction of the Magistrate Judge. (ECF No. 6.)
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 incarcerated at California State Prison ("CSP"), Corcoran. Plaintiff alleges that he was validated as an associate of the Mexican Mafia ("EME") prison gang based upon source items that do not serve as evidence of gang association, and the due process protections of CDCR's gang validation protocol.*fn1 This action is brought against Defendants Adams, Hubbart, Garza, Torres, Juarez, Bonilla, Yerena, Lunes, Billiou and Ostrander. Plaintiff is seeking compensatory and punitive damages, injunctive relief, and appointment of counsel.
On November 22, 2006, while housed at Kern Valley State Prison, an institutional gang investigation against Plaintiff (aka Thumper, a non-validated member of the Glendale Westside Locos 13 Street Gang) was completed. Plaintiff states that there is insufficient information to validate him as a member of the EME prison gang.
Four source items were used to validate Plaintiff as a gang member: 1)
a tattoo on Plaintiff's right knee that reads Varrio Locos
13;*fn2 2) a drawing consisting of three dots and two
bars that stands for the number 13;*fn3 3) a letter
intercepted by prison officials that was addressed to a validated
associate who had overall authority over EME activities for Corcoran's
general population which stated that Plaintiff was taking over the
leadership role of the general population when the current leader was
placed in administrative segregation; and 4) a kite*fn4
intercepted on the administrative segregation exercise yard
that was identified as being authored by Plaintiff.*fn5
Plaintiff argues that the number 13 is not a gang symbol for
him, but a symbol of his Mexican American heritage, the letter was not
authored by Plaintiff and contained hearsay, and there is no evidence
that Plaintiff wrote the kite. Plaintiff states that, even if the
evidence shows that he wrote the kite, CDCR did not reinvestigate
validation when he was transferred to CSP-Corcoran.
Plaintiff was interviewed regarding the source items on November 28, 2006. On November 30, 2006, Officer Yerena interviewed Plaintiff to allow him an opportunity to dispute any of the source items. Plaintiff submitted two pages of notes as rebuttal to his gang validation.*fn6 Plaintiff's gang validation package was completed by Defendant Garza on November 30, 2006. Plaintiff filed an inmate appeal on April 15, 2007, and was interviewed again by Defendant Garza, thus denying Plaintiff a fair and unbiased hearing.
Plaintiff claims that 1) prison officials violated due process by failing to have a fair hearing on his inmate grievance; 2) the symbols used to validate Plaintiff are not evidence of gang activity and infringe upon his First Amendment free speech rights; 3) there is no evidence Plaintiff violated any gang activity rules or regulations; 4) prison officials did not consider his rebuttal and denied him a fair hearing; 5) the source items do not meet the reliability test as required by CDCR regulations; 6) placing Plaintiff in administrative without evidence of current gang activity violates Plaintiff's due process rights; 7) no rule violations were issued although the source items allege violations of departmental regulations; 8) the written material used is hearsay and not supported by evidence; 9) Plaintiff's state created liberty interests were violated when prison officials failed to provide him copies of confidential information used against him; and 10) being required to spend six or more years in the SHU for association is itself cruel and unusual punishment in violation of the Eighth Amendment.
For the reasons stated, Plaintiff fails to state a cognizable claim for relief. Because the Court finds that Plaintiff's gang validation was based upon some evidence, and he received all that is required under due process, those claims based upon his initial designation as a gang member shall be dismissed, with prejudice.
A. Deliberate Indifference - Conditions of Confinement
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981). A prisoner's claim does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). In order to find a prison official liable under the Eighth Amendment for denying humane conditions of confinement within a prison, the official must know ...