The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS, WITH PREJUDICE, AND DISMISSING
COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM
(ECF No. 30)
Plaintiff Raul Sanchez Zavala ("Plaintiff") is a federal prisoner proceeding in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff filed this action on April 16, 2009. On May 11, 2011, an order issued dismissing the complaint, with leave to amend, for failure to state a cognizable claim. (ECF No. 12.) On August 29, 2011, an order issued dismissing Plaintiff's First and Sixth Amendment claims based upon his direct appeal, with prejudice, and ordering Plaintiff to either file a third amended complaint, or notify the court that he was willing to proceed on the claims found to be cognizable in the second amended complaint. (ECF No. 19.) On November 23, 2011, the Court appointed counsel for Plaintiff. (ECF No. 24.) On November 28, 2011, an order issued dismissing Plaintiff's third amended complaint, with leave to amend to attempt to cure the deficiencies in his due process claim. (ECF No. 25.) Currently before the Court is the fourth amended complaint, filed April 30, 2012. (ECF No. 30.)
II. Screening Requirement
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).
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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a has defendant acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.
Further, 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). 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, 556 U.S. at 678, 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, 127 S. Ct. 1955).
III. Allegations in Fourth Amended Complaint
Plaintiff is a federal prisoner and is incarcerated at the United States Penitentiary at Atwater ("Atwater"), California. Plaintiff brings this action alleging three counts against unknown correctional officers, Defendants Doe A, B, and C. Plaintiff's first cause of action alleges that sometime after September 25, 2006, Defendant Doe A rejected his legal mail without giving notice of the rejection in violation of the Due Process Clause of the Fifth Amendment.*fn1
Plaintiff's second cause of action alleges that sometime after February 19, 2008, Doe Defendant B rejected legal mail from Plaintiff's trial attorney without providing a notice of rejection. Plaintiff alleges that this violated his rights under the First, Fifth, and Sixth Amendments.
Plaintiff's third cause of action alleges that sometime between March 18, 2008, and June 9, 2008, Doe Defendant C failed to return several telephone calls from his trial attorney's office. Plaintiff alleges that as a result of his trial attorneys inability to reach him he was unable to participate in the development of his post-conviction claims in violation of his rights to attorney client communication under the First Fifth, and Sixth Amendments.