The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND THAT THIS DISMISSAL BE SUBJECT TO 28 U.S.C. § 1915(g) (Doc. 26.)
OBJECTIONS, IN ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Horace Bell ("Plaintiff") is a state prisoner, proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 30, 2009 at the Kern County Superior Court. (Doc. 1, Exh. B.) On February 19, 2010, this case was removed to federal court under 28 U.S.C. § 1441(b) by defendant Kurz. (Doc. 1.)
The Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 and entered an order on November 12, 2010, dismissing the Complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure, with leave to amend. (Doc. 9.) On November 29, 2010, Plaintiff filed the First Amended Complaint. (Doc. 10.) The Court screened the First Amended Complaint and entered an order on April 29, 2011, dismissing the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 20.) On May 11, 2011, Plaintiff filed the Second Amended Complaint. (Doc. 22.) The Court screened the Second Amended Complaint and entered an order on December 9, 2011, dismissing the Second Amended Complaint for failure to state a claim, with leave to amend. (Doc. 25.) On January 10, 2012, Plaintiff filed the Third Amended Complaint, which is now before the Court for screening. (Doc. 26.)
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 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 is required to 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 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. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF THIRD AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California. The events at issue allegedly occurred at Kern Valley State Prison in Delano, California, while Plaintiff was incarcerated there. Plaintiff names as defendants Correctional Officer ("C/O") T. Kurz, C/O C. Brubaker, C/O D. Kiser, C/O B. Eaton, C/O J. Trimble, Lieutenant C. Waddle, Sergeant V. Sica, C/O A. Agu, Sergeant R. Barrett, and C/O A. Romero.
Plaintiff alleges as follows. From January 2009 through October 2010, defendant Kurz retaliated against Plaintiff's First Amendment rights to file a prison grievance. Defendants Brubaker, Kiser, Eaton, Trimble, Waddle, Sica, Agu, Barrett, and Romero participated in the retaliation. Each defendant took some adverse action against Plaintiff's protected conduct and as a result, Plaintiff became scared. Defendant Kurz helped get Plaintiff moved to prevent further CDCR 602 appeals against her. Plaintiff lost his job as a recreational clerk. Other inmates approached Plaintiff, telling him defendants Brubaker and Kurz moved Plaintiff due to his exercise of First Amendment rights.
Defendants Trimble, Eaton, Kurz, Barrett, and Romero intentionally discriminated against Plaintiff based on his membership in a protected class. During their daily dealings with Plaintiff, each defendant's behaved in a hostile manner toward Plaintiff, yet were polite to the white or Mexican inmates similarly situated. Plaintiff's food tray was not as complete as those of the white and Mexican races, and he had insufficient toilet paper, no supplies, no writing paper or pens. Defendant Kurz's Mexican inmate boyfriend ...