FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Runnels, Meier, Barnes, Wagner, Simmorson, Coe, and Amero's ("defendants") move to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Dckt. No. 36. Plaintiff filed an opposition and defendants filed a reply. Dckt. Nos. 44, 45. For the reasons stated below, defendants' motion to dismiss should be granted in part, and all claims should be dismissed except for the retaliation claims against defendants Amero, Hougland, Von Rader, Miranda, Runnels, and Simmorson.
This action proceeds on plaintiff's February 20, 2007 second amended complaint against defendants Runnels, Meier, Barns, Wagner, Simmorson, Coe, Amero, Miranda, Von Rader, and Hougland.*fn1 See Second Amended Complaint ("Dckt. No. 16"); Screening Order ("Dckt. No. 23"). Plaintiff broadly labels his claims for relief as "Obstruction of Justice" and "Retaliation."*fn2
Dckt. No. 16 at 10, 12.*fn3 Within those labels, plaintiff alleges defendants retaliated against him in violation of the First Amendment, and conspired to retaliate and obstruct justice in violation of 42 U.S.C. § 1983, § 1985(2) and § 1986. Id. at 10-13.
According to the allegations in the complaint, plaintiff prepared an administrative appeal after prison officials improperly searched his cell and confiscated his property. Id. at 6. Plaintiff claims that instead of processing the appeal, defendant Amero "cancelled it." Id. Plaintiff alleges that at the hearing on this appeal, defendants Amero, Von Rader, and Hougland threatened to search plaintiff's cell and improperly confiscate more of plaintiff's personal property if plaintiff did not "shut-up." Id. at 7. Plaintiff alleges this was retaliation in violation of the First Amendment. Id. at 7, 12.
Plaintiff claims that he tried to appeal this issue, but defendant Wagner refused to process the appeal. Id. at 7. Therefore, plaintiff claims he wrote a letter directly to the warden -- defendant Runnels. Id. The associate warden -- defendant Meier -- allegedly responded to the letter but did nothing to assist plaintiff with processing the appeal. Id. Plaintiff claims he was eventually able to get an appeal processed regarding this issue, but that his allegations were determined to be unsubstantiated. Id. Based on these circumstances, plaintiff alleges that defendants violated his First Amendment rights and conspired "to obstruct justice by using the appeal system to cover-up the fact [that] defendant Wagner refused to process plaintiff's appeal . . . and defendant Meier's knowledge of this fact." Id. at 10-11.
Plaintiff also alleges that defendants acted pursuant to a policy of finding all complaints filed by prisoners against prison staff to be "unsubstantiated, unfounded, exonerated or closed in some other method" in favor of the California Department of Corrections and Rehabilitation (CDCR). Id. at 12. Plaintiff claims that "prisoners are members of a protected class," but that even if they are not, defendants violated his rights under 42 U.S.C. § 1983, § 1985(2), and § 1986, because defendants' "conduct served no legitimate penological interest." Id. at 3, 11.
Next, plaintiff alleges that defendant Miranda tried to get plaintiff's next-door neighbor to uncover his cell window by cutting off the power and toilet water to his cell. Id. at 8. Consequently, plaintiff claims that the power and toilet water in his own cell was turned off. Id. Plaintiff claims that he told defendant Barns that he had a medical condition requiring that the toilet water be turned on. Id. Plaintiff claims that Barns then "conspired" with defendant Miranda, who then stopped giving plaintiff "extra" toilet paper. Id. at 8, 13. Plaintiff claims that Miranda was subsequently informed that plaintiff had a medical condition requiring extra toilet paper through the resolution of an informal appeal that provided plaintiff with the toilet paper. Id. at 8 & n.3. Plaintiff claims that as part of the conspiracy between Barns and Miranda, and in retaliation for plaintiff's complaining to Barns, Miranda filed a 115 Rules Violation Report accusing plaintiff of being verbally abusive. Id. at 8, 13.
Plaintiff claims he wrote letters to Runnels about this issue. Id. at 9. In response, Runnels allegedly had a correctional officer escort plaintiff out of his cell in waist chains, and to the yard, at 8 or 9 p.m. Id. at 9, 13.Plaintiff claims that he was met by defendant Simmorson, who stated that plaintiff was not to write the warden any letters, and that if plaintiff filed another complaint he would "bring it" to plaintiff. Id. at 9.According to plaintiff, he interpreted Simmorson's remark to be a threat of physical harm that caused him to fear for his safety. Id. at 9, 13. Plaintiff alleges his appeals regarding this encounter were processed, but determined to be unsubstantiated. Id. Plaintiff alleges Runnels and Simmorson retaliated against him in violation of the First Amendment. Id. at 12.
Plaintiff alleges that there was a hearing on the rule violation report issued by Miranda and that defendant Coe refused to call any witnesses or to accept written statements from witnesses. Id. at 9-10. According to plaintiff, Runnels covered up the fact that Barns and Coe worked together to cover-up Miranda's retaliatory rules violation report and defendant Coe's refusal to allow witnesses or take written declarations. Id. at 11. Plaintiff alleges this violated his rights under 42 U.S.C. § 1983, § 1985(2), and § 1986. Id. at 10-11.
II. Rule 12(b)(6) Standards
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially ...