The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff Eddie Shaun Hubbard, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 20, 2011. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 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.
A. Summary of Bases for Claims
Plaintiff seeks to impose liability on three-hundred forty-two defendants who worked for the California Department of Corrections and Rehabilitation, for violating his rights under the United States Constitution.*fn1 Plaintiff's claims arise from the assessment of an indeterminate SHU (Security Housing Unit) term against him; "double jeopardy" based on the imposition, twice, of a SHU term for the same acts; and the hindrance of Plaintiff's ability to pursue an inmate appeal of the relevant events.
On July 7, 2009, Plaintiff was placed in the Administrative Segregation Unit (ASU) at Kern Valley State Prison for battery on an inmate with a weapon. Plaintiff was subsequently assessed a determinate SHU term. On December 14, 2010, Plaintiff was informed by Defendant Lomonaco that upon the completion of his term, he would be recommended for an indeterminate SHU term based on his multiple prior SHU terms. Plaintiff was later assessed an indeterminate SHU term and he was transferred to the California Correctional Institution on March 18, 2011, to serve the term. Plaintiff was then released from indeterminate SHU status but retained in ASU. Plaintiff alleges a due process claim arising out of his retention in ASU/SHU following the expiration of his determinate SHU term.
Plaintiff does not have a right, under federal law, to be housed in general population. The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under federal law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
Plaintiff has not alleged any facts supporting the existence of a liberty interest in remaining free from the SHU or the ASU, which precludes him from bringing a due process claim. Wilkinson, 545 U.S. at 221; Sandin, 515 U.S. at 484; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). Assuming that this deficiency is curable, Plaintiff also fails to demonstrate that he was denied the limited procedural protections he was due under federal law. Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986). Plaintiff's stated position that it was "illegal" to give him an indeterminate SHU term absent a gang validation does not, itself, support a federal due process claim. The violation of prison rules or regulations, to the extent that ...