The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM / OBJECTIONS DUE WITHIN THIRTY DAYS (ECF No. 32)
Findings and Recommendations
Plaintiff Michael Lynn Waters ("Plaintiff") 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 October 14, 2010. On February 14, 2012, the complaint was screened and dismissed, with leave to amend, for failure to state a claim. (ECF No. 27.) On March 16, 2012, the first amended complaint was screened and findings and recommendations issued recommending dismissing this action, with prejudice, for failure to state a claim. (ECF No. 29.) On April 30, 2012, an order issued adopting the findings and recommendations in part and Plaintiff's claims arising under the Eighth and Fourteenth Amendment were dismissed with prejudice, and Plaintiff was granted the opportunity to file an amended complaint setting forth his retaliation claims. (ECF No. 31.) Currently before the Court is the second amended complaint, filed May 21, 2012. (ECF No. 32.)
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)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and 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 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. Second Amended Complaint Allegations
Plaintiff alleges that "due to filing to the District Court for reasonable safety", Defendants Scaife and Flores made up a false report and presented it to the warden. (Sec. Am. Compl. 3,*fn1 ECF No. 32.) Plaintiff alleges that Defendants Scaife and Flores selected the reports with the intention to punish him for writing to the court to inform them that Corcoran officials were forcing Plaintiff to double cell when he had a mental health single cell status. Plaintiff contends that the reports they selected had nothing to do with single cell status and that Pelican Bay State Prison had sent court documents clearing Plaintiff prior to the report being issued. (Id. at 4.)
The report references an incident on May 21, 2003, for threatening to stab another inmate, but this was not due to single cell status. Another report referenced was dated April 29, 2003, and stated the Plaintiff disobeyed orders in an attempt to get transferred from CMF. (Id.) Other reports included were dated April 19, 2004, and May 2, 2008, showing Plaintiff had been placed on suicide watch. A January 5, 2004 report was a false note written to move Plaintiff to lock up because he owed another inmate money. (Id. at 5.) Plaintiff had a chrono for single cell status at Pelican Bay State Prison in his central file that was removed by Defendant Whitford the same date that Plaintiff was placed on temporary single cell status by Defendant Whitford. (Id. at 6.)
A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of retaliation in violation of the First Amendment consists of five elements: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected ...