The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (DOC. 1) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings And Recommendations
Plaintiff Joe Louis Valentine ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on July 25, 2011. On March 5, 2012, the Court screened Plaintiff's complaint and found that it stated a cognizable claim against Defendant J. Yerena for retaliation in violation of the First Amendment, but failed to state any other claims. Plaintiff was provided the opportunity to file an amended complaint or to notify the Court that he is willing to proceed only on the cognizable claims found. Plaintiff filed his notice on March 16, 2012. The Court thus issues the following.
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff is incarcerated at Kern Valley State Prison ("KVSP"), where the events giving rise to this action occurred. Plaintiff names as Defendant J. Yerena, Jr, an Institution Gang Investigator ("IGI").
Plaintiff alleges the following. On June 27, 2007, Plaintiff was transferred from general population to administrative segregation by prison officials based on Defendant Yerena's allegation of Plaintiff's prison gang involvement. Id. at 5. Seven independent source items were supposedly used to validate Plaintiff as a member of the Black Guerilla Family ("BGF"). Id. The validation was submitted to the Office of Correctional Safety, which approved it. Id. Defendant Yerena's recommendation of validation was motivated by retaliation against Plaintiff for filing a 602 inmate grievance/complaint on August 30, 2006 against correctional officer Garcia. Id. at 5-5A. On September 22, 2006, Plaintiff was placed in administrative segregation ("ad seg") and separated from Garcia. Id. at 5A. Plaintiff was held in ad seg from September 22, 2006 to December 3, 2006 pending an investigation. During Plaintiff's time in ad seg, Defendant Yerena informed Plaintiff that he had the ability to validate Plaintiff as a member of disruptive group, but had not done so. Id. Defendant Yerena told Plaintiff that if he continued his complaint, Defendant Yerena would validate him. Id. Plaintiff made it clear that he would not drop the complaint. Id. After Plaintiff was released to general population on December 3, 2006, Defendant Yerena confiscated all of Plaintiff's political writings, pictures, and address lists. Id. Plaintiff contends that the items used to validate him should not have been relied upon as evidence of membership in a disruptive group, as they were indicative of his political beliefs, not disruptive group membership. Id. at 5B. Defendant Yerena stated to Plaintiff that he did not agree with Plaintiff's political beliefs, which Plaintiff contends is a reference to Plaintiff's political texts, and writings by George Jackson, an alleged founder of BGF. Id. at 5C-5D. Plaintiff contends that Defendant Yerena's actions were clearly motivated by Plaintiff filing a complaint and his political beliefs. Id. at 5D.
Plaintiff contends a violation of the First Amendment, the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment. Plaintiff requests as relief compensatory and punitive damages, and costs of suit.
Retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Abuse of the gang validation process is a sufficient adverse action. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003).
Plaintiff state a cognizable retaliation claim against Defendant Yerena. Plaintiff alleges that Defendant Yerena submitted a gang validation for Plaintiff because Plaintiff had filed an inmate grievance against ...