Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. On October 4, 2010, plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4. Before the court is plaintiff's amended complaint.*fn1
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. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim 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 Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
II. Plaintiff's Amended Complaint
In his amended complaint, plaintiff alleges as follows. On March 11, 2009, plaintiff was charged with a rules violation for stalking floor staff (log number B03-09-043). The report was issued by defendant correctional officer S. Taylor and provides as follows:
On 03/11/08 at approximately 1705 hours, while performing my duties as Building 8 E-Bed Officer, during the unit chow release, inmate URIBE . . . followed me into the building 8 office where I was preparing cell search logs, and gave me a typewritten letter apologizing for stalking me. [I]nmate URIBE didn't stop at the office door and talk to me from there, he came right behind me and startled me. On 01/08/09 I told inmate URIBE to stop showing me personal photos or attempting to give me letters and love poems that he cut out of magazines. On 02/26/09 I told Officer Pena of URIBE'S stalking behavior and asked Officer Pena to tell inmate URIBE in Spanish (because he is a Spanish speaker), to leave me alone, that his behavior was inappropriate and unwanted. Officer Pena counseled URIBE in Spanish to cease his harassment of me.
I also warned inmate URIBE on 02/26/09, "If you don't back off of me, I will write a 115 RVR on you for stalking me." After all these warnings inmate URIBE continues his obsessive, compulsive stalking of me and after today, when he waited until chow release when Officer Pena was covering chow and Officer Knoll was searching a cell, in order to approach me in the confined space of the office, it seems the only solution is to remove inmate URIBE from his job assignment*fn2 and unit to another yard. A copy of his letter is attached. Inmate URIBE is aware of this report. Inmate URIBE is not a participant in the Mental Health Services Delivery System.
(Doc. No. 12 at 32.) Defendant Palomares was assigned as plaintiff's investigative employee with respect to the disciplinary charge and defendant Ward was the hearing officer. On March 30, 2009, plaintiff was found guilty of the prison disciplinary charge of stalking floor officer and was assessed sixty-days loss of behavioral credits and placed in privilege group C for sixty-days. (Id. at 48-49.)
On March 11, 2009, plaintiff was provided a notice for administrative segregation placement. (Id. at 35.) The notice, signed by defendant S. Smith, informed plaintiff that the placement was due to the incident with officer Taylor which was deemed to be a threat to the safety and security of the prison. (Id.) Plaintiff refused to sign the notice. (Id.) On March 19, 2009, plaintiff appeared before the ICC for an initial administrative placement review. (Id. at 4 & 40.) The ICC determined that plaintiff could be released from administrative segregation and plaintiff was assigned "C" facility. (Id. at 40.)
On March 12, 2009, plaintiff was issued a second rules violation for "refusing to accept assigned housing" with another inmate while in administrative segregation (log number C03/09-059). (Id. at 37.) While in administrative segregation, plaintiff contends that some of his personal property was lost. (Id. ¶ 51 at 23.) Plaintiff asserts that defendant correctional officer Koll was responsible for securing his property. (Id.)
Plaintiff also alleges that since he filed this civil rights on September 28, 2010*fn3 , he has been subject to multiple acts of retaliation. (Id. at 24.) Those acts of retaliation included the following: The administration's refusal to assign plaintiff to housing in B-yard, although that is where defendant Taylor worked. (Id.) While in administrative segregation, plaintiff was moved several times. (Id. at 25.) There were delays in releasing and returning plaintiff to his cell. (Id. at 26.) Defendant Taylor has been assigned to work in the same building where plaintiff is housed which plaintiff believes has been done to cause him "deep emotional and psychological pain[.]" (Id. at 27.)
Plaintiff claims his right to due process was violated, that he was subjected to cruel and unusual punishment, and that he has suffered retaliation. (Doc. No. 12 at 9.) Plaintiff seeks $12,000 as monetary damages and the removal of the ...