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 (Doc. 1) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Quincy Sims, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 21, 2012. 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.
Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff's claims must be facially plausible to survive screening, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff, who is currently incarcerated at Kern Valley State Prison (KVSP), brings this action against Captain M. Cabrera and Appeals Coordinator B. Da Viega for violating his rights under the United States Constitution. Plaintiff's claims arise from prison officials' failure to grant his request to remove his former gang affiliation from his bed card and central file, which prevents him from freely practicing his religion. In addition, Plaintiff alleges that his safety concerns are not being addressed and he is not being allowed to appeal his claim.
More specifically, Plaintiff alleges that he was attacked by his cellmate, an affiliated gang member, on June 8, 2012. Plaintiff informed Defendant Cabrera that he was afraid of being housed with gang members and he requested to be single celled, to be allowed to practice his religion, and to have his former gang affiliation removed from his bed card and central file. However, Defendant Cabrera did not respond to Plaintiff's GA-22 inmate request form.
On September 13, 2012, Plaintiff filed an inmate appeal concerning his religion and housing issues, but Defendant Da Viega kept informing Plaintiff of the attachments he must include with his appeal for it to be processed. Plaintiff alleges that he complied with all the requirements identified by Defendant but his appeal was never returned to him with a response.
To date, Plaintiff remains double celled and identified as an affiliate of the Bloods. Plaintiff alleges that these events violated his rights under the First, ...