The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (ECF No. 17) THIRTY DAY DEADLINE
Plaintiff Jason R. Pezant is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 17, 2012, an order issued dismissing Plaintiff's complaint for failing to comply with Federal Rules of Civil Procedure 8 and 18. (ECF No. 12.) On April 6, 2012, Plaintiff's first amended complaint was stricken from the record for failing to comply with the January 17, 2012 order. (ECF No. 16.) Currently before the Court is Plaintiff's first amended complaint and motion for a temporary restraining order, filed May 4, 2012.*fn1
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 has 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).
II. First Amended Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the California Correctional Institution, Tehachapi. Plaintiff is serving a ten year sentence for possession of firearms and assault weapons and participating in a street gang. (First Am. Compl. ¶ 25.) Plaintiff brings this action against twenty two defendants alleging 1) retaliation in violation of the First Amendment, (id. at ¶¶ 123-125, 130-133); 2) suppression of expression in violation of the First Amendment, (id. at ¶¶ 126-129); 3) deliberate indifference in violation of the Eighth Amendment, (id. at ¶¶ 134-141); 4) conspiracy, (id. at ¶¶ 142-147); 5) regulations used to validate him as a gang member are vague and over broad, (id. at ¶¶ 148-150); and 6) failure to train/supervisory liability, (id. at ¶¶ 151-154). Plaintiff is seeking injunctive relief and compensatory and punitive damages. (Id. at pp. 22-25.)
Plaintiff states that during his incarceration he has filed or assisted others in filing inmate grievances and his family has sent him various books and articles relating to African American historical figures and culture. (Id. at ¶¶ 27, 28.) Plaintiff alleges that in 2009, Defendant Sigston began harassing Plaintiff for an unknown reason, but Plaintiff believes it was because of Plaintiff's activities in filing grievances. (Id. at ¶¶ 28, 29.) On two occasions, Defendant Sigston confiscated four pieces of Plaintiff's property, which were not contraband. (Id. at ¶ 30.) On a later date, Defendant Sigston asked Plaintiff if he was validated and Plaintiff replied that he did not know. Defendant Sigston then stated that Plaintiff would be. (Id. at ¶¶ 31-33.) Plaintiff filed grievances against Defendant Sigston's harassment which went unanswered. (Id. at ¶ 34.)
On March 19, 2010, Defendants Nicolson and Chamberlin searched Plaintiff's cell and confiscated some of his correspondence and over 400 pages of Black History Research and African religious literature. (Id. at ¶ 36.) Plaintiff filed an inmate grievance. (Id. at ¶ 37.) On April 8, 2010, Defendant Turmezei summoned Plaintiff to the program office and presented Plaintiff with chronos documenting some of the confiscated materials. (Id. at ¶ 38.) Defendant Turmezei alleged that based on source documents Plaintiff had been validated as a gang member. The source documents included 1) a confidential memo dated April 7, 2010, which stated that Plaintiff wrote an outgoing letter evidencing his association with a validated gang member; 2) a confidential memo dated April 6, 2010, which stated Plaintiff's property revealed "a reflective revolutionary styled writing" which "contained specific revolutionary language and identifiers showing Pezant's association with the BGF [Black Guerrilla Family]; 3) a confidential chrono dated March 25, 2010, which stated that a search of Plaintiff's property revealed a two-page "historical overview of the history of the BGF" and "identified founder" George Jackson; 4) a chrono dated April 21, 2009, which stated Plaintiff's property revealed two symbols evidencing Plaintiff's association with the BGF, a drawing containing the image of George Jackson, and a drawing containing the image of a Black man restrained by officers with "Blood In My Eye" the title of George Jackson's book, which showed his allegiance, loyalty, and association with the BGF; 5) a chrono dated March 25, 2012, which stated Plaintiff's property revealed a cut-out picture of George Jackson which showed his loyalty to the BGF prison gang; 6) a chrono dated March 25, 2010, stating Plaintiff's property revealed a cut-out magazine picture of a gorilla and that members and associates of the BGF use images of gorillas. (Id. at ¶ 39.)
Plaintiff was given copies of the chronos and taken to administrative segregation. Defendant Tyree acted as "segregation authority" and authorized Plaintiff's administrative segregation confinement on April 8, 2010. (Id. at ¶ 40.) Plaintiff wrote his responses to the allegations and repeated asked for the opportunity to gather and present evidence from his property to prove his non-affiliation with prison gangs. Plaintiff alleges that Defendant Turmezei clearly selected tidbits of information and skewed them out of context. (Id. at ¶ 41.) On April 9, 2010, Defendant Turmezei retrieved Plaintiff's response to the allegations and Plaintiff verbally reiterated his request to present exonerating evidence, but Defendant Turmezei submitted the validation package to his superior that same day. (Id. at ¶¶ 42, 43.) Plaintiff filed requests to submit evidence to Defendant Turmezei's superiors, which were denied or went unanswered. (Id. at ¶¶ 45, 46.)
On June 8, 2010, after he received his property, Plaintiff submitted an inmate grievance with his evidence attached, but it was rejected by Defendant Sampson because it was untimely. On that same day, Plaintiff received notice that Defendants Buechner and Jakabosky had validated him as a BGF associate on May 17, 2010. (Id. at ¶¶ 48, 49.) Plaintiff resubmitted his inmate appeal, which was rejected on June 15, 2010, on the grounds that it contained profanity. (Id. at ¶¶ 50, 51.) Plaintiff resubmitted the appeal with the profanity censored. On July 13, 2010, Defendants Stelter, Barnes, and Hopkin ordered Plaintiff's continued confinement in administrative segregation finding that Plaintiff's presence threatens the safety and security of the institution. (Id. at ¶¶ 52, 53.)
Between July 12 and 19, 2010, Defendants Noyce, Gutierrez, and Holland partially granted Plaintiff's appeal outlining that the "OCS" had reviewed the source items submitted by the gang unit and Plaintiff's rebuttal. However, the review did not include Plaintiff's evidence. (Id. at ¶ 54.) Defendant Noyce allegedly misstated a statement of Plaintiff's making it seem antagonistically arrogant and undoubtedly having a negative effect on the next level of review. (Id. at ¶ 57.)
On August 16, 2010, Defendant Powell made the decision to endorse Plaintiff to serve an indefinite term in the Security Housing Unit. (Id. at ¶ 60.) On September 16, 2010, during a committee hearing Plaintiff vehemently raised objections to the committee's decision to reclassify him to be housed with BGFs stating he is not a BGF and invariably housing him with them will place his life in danger. (Id. at ¶¶ 61, 62.) Defendants Steadman, Lundy, and Liles ignored Plaintiff. (Id. at ¶ 63.) Defendant Walker lied by stating in a report that Plaintiff agreed with his yard and cell status. (Id. at ¶ 64.) Defendants Liles, Lundy, and Steadman signed the committee report in order to expose Plaintiff to harm. (Id. at ¶ 65.) On December 2, 2010, Defendants Allen and Foston denied Plaintiff's appeal at the Director's Level, relying on the findings of Defendants Noyce, Gutierrez, and Holland. (Id. at ¶ 66.)
Plaintiff claims that 1) the literature used to validate him as a gang member is protected speech and using it to validate him violates the First Amendment, (id. at ¶¶ 69-73); 2) he was validated as a gang member in retaliation for filing inmate grievances, (id. at ¶¶ 74-88); 3) he has been placed at a substantial risk of serious harm by being reclassified as a gang member in violation of the Eighth Amendment, (id. at ¶¶ 89-104); 4) all Defendants have engaged in a conspiracy to harm him for exercising his right to pursue prison grievances and advocate "Aftocentric" ideas, (id. at ¶¶ 105-106); and 5) the regulations cited in the justification for the adverse action against Plaintiff are vague and overbroad, (id. at ¶¶ 107-117).
For the reasons set forth below, Plaintiff's first amended complaint states a claim against Defendants Turmezei, Buechner, and Jakabosky, but fails to state a ...