ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
I. Procedural History, Screening Requirement, and Standard
On October 31, 2011, Plaintiff James H. Takechi ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On February 28, 2012, the United States District Court, for the Northern District of California, San Francisco Division, directed service of Plaintiff's complaint, finding a cognizable claim against Defendants G. Adame and J. Tyree for due process gang validation. Doc. 5. On May 31, 2012, the Court transferred this action to the United States District Court for the Eastern District of California, Fresno Division*fn1 since the allegations in the complaint took place at California Correctional Institution in Kern County ("CCI").*fn2 Doc. 9.
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) (emphasis added).
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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
While 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, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; 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. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
II. Plaintiff's Complaint
In Plaintiff's complaint, he names Defendants G. Adame, Correctional Officer, and J. Tyree, Correctional Sergeant at CCI. Compl. at 1, Doc. 1. Plaintiff also attached exhibits to his complaint. Id. at 6-24.
On March 12, 2009, interviews were held of all inmates and a confidential source alleged Plaintiff as a gang member associate. Id. at 7. A confidential memorandum authored by Officer T. Turmezei identified Plaintiff inmate James Takechi aka "Silent" as being a member of "Mesa," which is a group of inmates who oversee activities of the Mexican Mafia (EME). Id. at 7, 10, 16. On March 15, 2009, Defendant Adame began an investigation into Plaintiff's alleged association with the Mexican Mafia prison gang. Id. at 3, 17. Defendant Adame reported that on September 29, 2003, Plaintiff was initially validated as an active associate, based on six source items dated in 2000 and 2001. Id. at 17. On October 10, 2007, Plaintiff was validated as an inactive associate. Id. at 17, 19. Defendant Adame recommended to change Plaintiff's status from validated inactive to validated active associate with the Mexican Mafia (EME) prison gang. Id. at 17. On March 16, 2009, Defendant Adame completed his investigation and concluded there was sufficient evidence to validate Plaintiff as a gang associate, based on information from a confidential source. Id. at 3, 18. On March 18, 2009, Plaintiff was taken from general population and needlessly placed on contraband watch for four days. Id. at 3.
On March 20, 2009, Defendant Adame served Plaintiff with written notice of the reason for segregation and the 1030 Confidential Information Disclosure, but Plaintiff did not have use of his hands while in contraband watch. Id. at 3, 7, 16. In the validation chrono, Defendant Adame reported that Plaintiff refused to sign the validation interview notification and disclosure form, but Plaintiff did state that he understood the source items. Id. at 17, 18. Defendant Adame stated that Plaintiff was provided 72 hours to review the source items being submitted to validation. Id. at 17. Defendant Adame reported that the confidential source was considered reliable because the confidential source has previously provided information which proved to be true. Id. at 16. Plaintiff said he had no knowledge of any gang activity and how did the confidential informant obtain that information. Id. at 17.
On March 22, 2009, Plaintiff was taken to segregation. Id. at 4. On March 23, 2009, Defendants Adame and Tyree arrived for Plaintiff's hearing / interview. Id. at 4. Plaintiff told them that he did not know the charges against him and he had not been re-issued the written notice. Id. Defendant Adame told Plaintiff it was "now or never" and gave him an abbreviated description of the charges. Id. Plaintiff told him that the information from the confidential source was false and requested that Adame personally question the confidential source. Id. Defendant Adame declined to personally question the confidential source. Id. Defendant Adame forwarded the validation package to Office of Correctional Safety ("OCS") for approval without first providing Plaintiff with a required copy of the interview or written notice of the charges. Id. On March 25, 2009, Plaintiff was removed from inactive status and re-validated as an active Mexican Mafia (EME) prison gang associate. Id. at 4, 10, 19. On April 3, 2009, Plaintiff was sentenced to an indeterminate Security Housing Unit ("SHU") term. Id. at 4.
On April 19, 2009, Plaintiff filed an appeal against Defendant Tyree, who is Adame's supervisor. Id. at 4, 22. Plaintiff stated he had not received his property. Id. Plaintiff also stated that his 1030 Confidential Information Disclosure was apparently lost because it was served to him in contraband watch (CW), and per CW policy, they are not allowed to have anything on their persons. Id. On April 20, 2009, Defendant Tyree granted the appeal, stating that Plaintiff's property, not deemed contraband, was returned, and Tyree issued Plaintiff a copy of the written notice of the charges against him. Id.
On April 30, 2009, the Institutional Classification Committee ("ICC") held a SHU initial review in absentia, as Plaintiff refused to attend the hearing. Id. at 20. The ICC elected to double cell Plaintiff with other validated gang members or associates of the Mexican Mafia (EME) gang for an indeterminate SHU pending transfer or 180 day review. Id.
On June 2, 2009, J. Gutierrez, Correctional Captain for the Investigative Services Unit, and K. Holland, Chief Deputy Warden for CCI, denied Plaintiff's inmate appeal at the second level of review. Id. at 10-12. In the decision by Gutierrez, he stated that Plaintiff is requesting to be removed from active Mexican Mafia prison gang status; that the confidential source take a polygraph test; and that Plaintiff have access to any information from other confidential sources that contradict the ...