The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ECF No. 4 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Cornelius V. Lee ("Plaintiff") is prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 20, 2012, Plaintiff filed his Complaint in the Central District of California. On July 5, 2012, the action was transferred to this Court, and is presently before the Court for screening. ECF No. 4.
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. Id. § 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." Id. § 1915(e)(2)(B)(ii). 2
A complaint must contain "a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, at the time these events occurred. Plaintiff names as Defendants Matthew Cate, secretary of CDCR, and S. Tallerico, correctional counselor II.
Plaintiff alleges the following. Plaintiff complains that Title 15 of the California Code of Regulations, section 3004 does not provide for equal treatment for inmates who are lesbian, gay, bisexual, transgender, questioning, and intersex.*fn1 Plaintiff had to become violent against inmate predators in order to protect himself because CDCR and Defendant Cate do not correct this deficiency in Title 15.
Plaintiff filed an inmate grievance regarding this matter, which Defendant S. Tallerico denied as outside the scope of the appeals office. Plaintiff contends a violation of his First Amendment right to freedom of expression. Plaintiff requests as relief: a declaration that section 3004 is unconstitutional, Defendant Cate be ordered to add sexuality to section 3004, and monetary damages.
"[A] prisoner inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). A regulation that impinges on First Amendment rights "is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 2 89 (1987). 3
Plaintiff fails to state a claim. Plaintiff contends that Defendant Cate is violating Plaintiff's 4 right to freedom of expression. However, Plaintiff has failed to allege facts which demonstrate that 5 this occurs because of Defendant Cate's conduct. There are no allegations that indicate Defendant 6 Cate impedes Plaintiff's expression of his homosexuality. 7
Plaintiff also alleges that Defendant Cate acted with deliberate indifference by failing to 8 change Section 3004, which the Court construes as an Eighth Amendment claim. To constitute cruel 9 and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain . . . ." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
While Plaintiff alleges that he has been forced to defend himself from other inmates who prey on Plaintiff because of his homosexuality, Plaintiff alleges no facts which indicate that ...