The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
SECOND SCREENING ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS WITHOUT LEAVE TO AMEND, AND DISMISSING CLAIMS AGAINST DEFENDANT LACEY, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 10) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Robert Saenz, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 10, 2011. On October 17, 2012, the Court dismissed Plaintiff's sixty-six page complaint, with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8(a). On November 26, 2012, Plaintiff filed a twenty-five page amended complaint accompanied by seven-hundred thirty-eight pages of exhibits.*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. 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 Richard J. Donovan Correctional Facility in San Diego, brings this action against Warden Frank X. Chavez, Correctional Lieutenant J. Kavanaugh, and Correctional Officer B. Lacey for violating his rights under the United States Constitution while he was confined at Sierra Conservation Center (SCC) in Jamestown in 2010.*fn2
In his amended complaint, Plaintiff sets forth a litany of very general accusations against all three defendants.*fn3 The Court declines to summarize those allegations; it suffices to note that the violation of state law, including prison regulations, rules, and polices, does not support a claim under section 1983, Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Ove v. Gwinn, 264 F.3d 817, 824-25 (9th Cir. 2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997), and conclusory assertions of wrongdoing do not support any claims, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.*fn4
a. Summary of Allegations
On August 26, 2010, Plaintiff was ordered to appear before the Administrative Segregation Unit (ASU) Institutional Classification Committee (ICC). Plaintiff was escorted to a holding cage next to the ASU door and when Defendant Chavez entered ASU, he saw Plaintiff and stated, "I'm transferring your ass today." (Amend. Comp., Doc. 10, ¶16.) When Plaintiff asked what was going on, Defendant Chavez told him that this was Defendant's prison, he was Plaintiff's due process, and Plaintiff was being transferred whether he liked it or not. (Id.) Plaintiff alleges that he was sandbagged, resulting in the loss of IE (investigative employee) services and an inmate witness, retaliation for filing grievances, and the quashing of any possible defense.
An ASU-ICC thirty-day review was scheduled for September 2010, and on September 22, 2010, Plaintiff's caseworker told him that he was done and he was going to Corcoran Level III, his enemy concerns had long been a non-issue, his enemy was transferred four to five weeks ago, and any appeal he filed would do no good because the warden was set on keeping him in ASU pending transfer.
Plaintiff's allegations suggest a due process claim. Though no small feat, the Court was able to cull from Plaintiff's voluminous exhibits several records relevant to this claim, which lend much needed clarity to the factual bases for Plaintiff's claims. Those facts reveal that on August 18, 2010, Plaintiff was removed from the Sensitive Needs Yard at SCC and placed in ASU pending an investigation into whether Plaintiff had engaged in the "extortion of mentally disadvantaged inmates." (Amend. Comp., Doc. 11-2, court record p. 14.) A hearing on Plaintiff's ASU placement was held on August 24, 2010, and he was absolved of extortion but retained in ASU because an enemy concern involving an inmate named Potts had come to light. (Id., p. 16.) That enemy concern was documented by Defendant Kavanaugh in a confidential information disclosure form dated August 24, 2010. (Id., p. 21.)
The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 222-23 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
However, Plaintiff's allegations do not support the existence of a liberty interest in remaining free from ASU or in remaining at SCC, Wilkinson, 545 U.S. at 222-23; Myron, 476 F.3d at 718; Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532 (1976); see also Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) (no liberty interest in remaining free from the SHU pending disciplinary hearing and no liberty interest in avoiding SHU confinement); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (no liberty interest in remaining free from disciplinary segregation unit pending disciplinary hearing), and in the absence of ...