The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE ANY CLAIMS AND DENIAL OF MOTION TO DISMISS AS MOOT (Document 19) THIRTY-DAY OBJECTION DEADLINE
Plaintiff Jon Christ ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The action was removed from the Santa County Superior Court on April 11, 2011, and transferred to this Court on April 29, 2011. On April 3, 2012, the Court screened Plaintiff's complaint and dismissed it with leave to amend for failure to state a claim. Plaintiff filed his First Amended Complaint ("FAC") on August 8, 2012, naming Avenal State Prison Warden James Hartley as the sole Defendant.
On November 16, 2012, prior to the Court's screening of the FAC, Defendant filed a Motion to Dismiss the action for failure to state a claim. However, the motion was served on Plaintiff at his old address and thus he did not file an opposition.*fn1 As the Court is now screening the FAC sua sponte pursuant to 28 U.S.C. § 1915(A), the Motion to Dismiss is moot and the service error is not relevant.
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).
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present 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.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff alleges that on September 22, 2010, he was moved from Solano State Prison, level 2, to Avenal State Prison, level 2. Upon his arrival and as staff were reviewing his property, he was informed that Defendant Hartley forbid any inmates from possessing "anything that plugs into a wall elect. outlet." FAC, at 4. Plaintiff contends that all level 2 inmates within the California prison system should be able to have the same items, regardless of prison. Plaintiff requests that he be given his television, fan, battery recharger, electric typewriter and other electrical appliances. He seeks no further relief.
It is unclear from Plaintiff's allegations whether his property was taken from him upon his arrival, or whether he is simply challenging Avenal's policy prohibiting appliances that plug into wall outlets.
To the extent that he challenges the policy and alleges a liberty interest in possessing such items, the Court previously explained why this did not state a claim in the first screening order. As the Court explained in its April 3, 2012, order:
Although "States may under certain circumstances create liberty interests which are protected by the Due Process Clause," those circumstances are generally limited to freedom from restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Here, the restriction prohibiting Plaintiff from keeping appliances that require an electrical outlet ...