The opinion of the court was delivered by: United States Magistrate Judge Michael J. Seng
ORDER DISMISSING PLAINTIFFS'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Ruchell Cinque Magee ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant action in San Francisco Superior Court on January 14, 2011. (Notice of Removal, ECF No. 1 at 1.) Service on all of the Defendants was completed on March 21, 2011. (Id.) On April 20, 2011, Defendants filed a Notice of Removal to the United States District Court for the Northern District of California. (Id.) On May 18, 2011, Plaintiff filed a motion to remand. (ECF No. 5.) On June 3, 2011, this case was reassigned to the Eastern District of California and Plaintiff's motion to remand was denied. (ECF Nos. 10 & 11.) Plaintiff's several motions for reconsideration of his request to remand were also denied. (ECF Nos. 15, 19, 20, 22, & 24.)
Plaintiff's First Amended Complaint is now before the Court for screening.*fn1 (Am. Compl., ECF No. 1 at Ex. A.) For the reasons set forth below, the Court finds that Plaintiff's Amended Complaint fails to state a claim.
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 currently housed at California Substance Abuse Treatment Facility in Corcoran, California ("SATF"), where most of the events at issue in Plaintiff's Amended Complaint appear to have occurred. Plaintiff sues the following individuals for unlawful retaliation under the First Amendment, violation of his right to due process under the Fourteenth Amendment, and violation of his rights under the Eighth Amendment: 1) Peter Flores, deputy attorney general of California, 2) K. Comaites, deputy warden at SATF, 3) Sue Hubbard, director, Department of Corrections, 4) Jack Garner, commission, parole board, 5) D. Hansen, Counselor at SATF, 6) B. Peterson, correctional counselor at SATF, and 7) Davis, guard at SATF.
Plaintiff asks for twelve million dollars, declaratory relief, a temporary restraining order, a preliminary injunction, costs, and a jury trial.
Plaintiff alleges as follows:
In October 2008, in retaliation for Plaintiff having filed matters with the courts, Defendants Flores and Comaites conspired to have Plaintiff transferred to a program with prison gangs and violent inmates. (Am. Compl. at 6.) The program was placed on lock-down and inmates in the program were denied privileges. (Id.) Plaintiff's grievance, objecting to the transfer, was ignored. (Id. at 6-7.)
Defendants Flores and Davis conspired to assault Plaintiff. (Am. Compl. at 7.) They pepper sprayed Plaintiff's face, temporarily blinding him, in retaliation for his court filings. (Id.)
Defendants Flores, Hubbard, Hansen, and Peterson conspired to suppress two 2009 Correctional Classification Committee's recommendation for review of the transfer in light of Plaintiff's medical needs. (Am. Compl. at 7.) After a year of suppressing the recommendations, Defendants Flores, Hansen, and Peterson overrode the recommendations. (Id.) They falsely charged Plaintiff with battery on Defendant Davis; Plaintiff was denied the opportunity to dispute the charge in a judicial hearing. (Id.)
Defendants Flores and Garner conspired "to carry out a COINTELPRO kangaroo Court proceedings" during Plaintiff's 2008 parole hearing. (Am. Compl. at 8.) At the hearing, Plaintiff was classified as a threat to the public and was not released. (Id.) Defendant Flores concealed evidence that Plaintiff had been acquitted of kidnaping. (Id.)
Defendants Flores, Garner, and "COINTELPRO agents" conspired to hold another "COINTELPRO kangaroo Court proceeding" in 2011. (Id. at 8.)
Defendants have subjected Plaintiff to cruel and unusual punishment. (Am. Compl. at 8-9.) Plaintiff filed 602 appeals, but has not received any relief. (Am. Compl. at 9.) Plaintiff has been subject to "double jeopardy prosecution" by the parole board and he has not had the opportunity to prove his innocence. (Id.) Due to this prosecution, Plaintiff has high blood pressure and is in danger of suffering from a heart attack and stroke. (Id.)