The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING DEFENDANT'S REQUEST FOR THE COURT TO SCREEN THE SECOND AMENDED COMPLAINT AND FOR EXTENSION OF TIME (Doc. 20.) ORDER FINDING THAT PLAINTIFF STATES A COGNIZABLE CLAIM FOR RETALIATION AGAINST DEFENDANT ROSENTHAL DEADLINE FOR DEFENDANT ROSENTHAL TO FILE RESPONSE TO SECOND AMENDED COMPLAINT: DECEMBER 14, 2012
Kevin Fields ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by civil complaint at the Kings County Superior Court on August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant Rosenthal ("Defendant") removed the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(b). (Doc. 1.) On October 7, 2010, Plaintiff filed the First Amended Complaint. (Doc. 5.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on May 21, 2012, requiring Plaintiff to either file a Second Amended Complaint, or indicate his willingness to proceed on the claims found cognizable by the Court. (Doc. 9.) On May 11, 2012, Plaintiff notified the Court that he was willing to proceed on the claims found cognizable by the Court. (Doc. 11.) On June 20, 2012, Defendant Rosenthal filed a motion to dismiss the First Amended Complaint for failure to state a claim. (Doc. 12.)
On July 5, 2012, Plaintiff filed a motion for reconsideration of the Court's screening order of May 21, 2012. (Doc. 13.) On July 26, 2012, the Court denied Plaintiff's motion for reconsideration and granted him another opportunity to either file a Second Amended Complaint or indicate his willingness to proceed on the claims found cognizable by the Court. (Doc. 16.) On August 24, 2012, Plaintiff filed the Second Amended Complaint. (Doc. 17.) On August 24, 2012, in light of the filing of the Second Amended Complaint, the Court denied Defendant's motion to dismiss as moot. (Doc. 18.)
On October 26, 2012, the Court entered an order requiring Defendant to file a response to the Second Amended Complaint within thirty days. (Doc. 19.) On October 31, 2012, Defendant filed a request for the Court to conduct a screening of the Second Amended Complaint pursuant to 28 U.S.C. § 1915A, and for an extension of time to file a response to the Second Amended Complaint. (Doc. 20.)
II. REQUEST FOR COURT TO SCREEN SECOND AMENDED COMPLAINT
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).
A complaint is required to 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, 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). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal 129 S.Ct. at 1949. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; 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. Id.
B. Defendant's Request for Screening
Defendant requests the Court to screen the Second Amended Complaint pursuant to 28 U.S.C. § 1915A(a), in light of differences between Plaintiff's factual allegations in the First Amended Complaint and the Second Amended Complaint. Good cause appearing, Defendant's request shall be granted by this order.
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, where the events at issue allegedly occurred. Plaintiff names only one defendant, Richard Rosenthal (Senior Librarian). ...