The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 13) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Markus A. Greer is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on March 17, 2011. On March 13, 2012, an order issued dismissing the complaint, with leave to amend, for failure to state a cognizable claim. (ECF No. 12.) Currently before the Court is Plaintiff's first amended complaint, filed April 4, 2012. (ECF No. 13.)
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. First Amended Complaint Allegations
Plaintiff is in the custody of the California Department of
Corrections and Rehabilitation and is incarcerated at California State
Prison, Corcoran. Plaintiff brings this action against Defendants
Faldon, J. Lopez, Martinez, Comaites, Lambert, R. Lopez, Campbell, and
Does 1-5 alleging that Plaintiff's name, facts from his prison record,
and false statements attributed to Plaintiff were used in a rule
violation report against another prisoner, Inmate Alexander, and
Plaintiff was prevented from assisting Inmate Alexander during the
rule violation hearing. Plaintiff claims violations of the First,
Eighth, and Fourteenth Amendments. (First Am. Compl. 4,*fn1
ECF No. 13.)
Plaintiff states that on December 26, 2010, Defendant Faldon filed a rule violation report against Inmate Alexander. In the rule violation report, Defendant Faldon stated that he told Inmate Alexander to speak with Plaintiff about double celling. Plaintiff alleges that Defendant Faldon falsely stated that both inmates had the same gang affiliation. However, Plaintiff's gang affiliation is San Diego Bloods, and Inmate Alexander stated that he doesn't house with Bloods because he is from the Bay area. Plaintiff claims that the rule violation report was "a due process violation that's clearly retaliatory discrimination (racial profiling & targeting) in violating of the Department's 'inmate housing policy.'"(Id. at 5.)
Defendant Caldwell was assigned as the Investigative Employee for Inmate Alexander. On January 12, 2011, Defendant Caldwell refused to allow Plaintiff to assist Inmate Alexander in his defense of the rule violation, because she did not personally ask Plaintiff the six questions posed by Inmate Alexander. Plaintiff alleges that Defendant Caldwell falsified the January 12, 2011 report by representing that she asked Plaintiff the questions when she did not. (Id. at 6.) Defendant Caldwell and Faldon refused to allow Plaintiff to assist Inmate Alexander, and issued the false report to cover-up their falsified information about Plaintiff in Inmate Alexander's rule violation report. On December 28, 2010, Defendant J. Lopez endorsed the falsified information about Plaintiff contained in the rule violation report against Inmate Alexander. (Id. at 7.)
On January 13, 2011, during the disciplinary proceedings, Defendant Martinez refused to address the falsified information about Plaintiff contained in the report against Inmate Alexander. On January 20, 2011, Defendant Comaites, and on January 25, 2011, Defendant Lambert, endorsed the violation. (Id. at 8.)
Plaintiff filed an inmate appeal on February 10, 2011, regarding the use of his information in the rule violation hearing against Inmate Alexander. Defendant R. Lopez allowed the inmate appeal to be screened out by the Appeals Coordinator's Office. On February 14, 2011, Plaintiff's appeal was screened out by Defendant Campbell stating he could not submit an appeal on behalf of another inmate. (Id. at 9.)
For the reasons set forth below, Plaintiff has failed to state a cognizable claim against any named defendant. Plaintiff has been previously been granted an opportunity to amend his complaint, with direction from the Court. The Court finds that the deficiencies identified below are unable of being ...