The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On February 21, 2013, Yohan Cross ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 28 U.S.C. § 1983 ("Complaint").
In accordance with the provisions governing in forma pauperis proceedings, the Court must screen the complaint before ordering service to determine whether the action:
(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). This screening is governed by the following standards:
A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "'[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'" Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide "more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the "speculative level," Twombly, 550 U.S. at 555, or the merely possible or conceivable. Id. at 557, 570.
Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents enough facts "to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability requirement, but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts that are merely consistent with liability stops short of the line between possibility and plausibility. Id.
In a pro se civil rights case, the complaint must be construed liberally to afford plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
After careful review and consideration of the Complaint under the relevant standards and for the reasons discussed below, the Court finds that theComplaint should be DISMISSED WITH LEAVE TO AMEND.
Plaintiff names as defendants: M. Reynoso, institutional gang investigator at California Men's Colony ("CMC"); J.L. Cortez, institutional gang investigator at CMC; M.L. Brodie, an officer with the Office of Correctional Safety ("OCS") of the California Department of Corrections and Rehabilitation ("CDCR") in Sacramento; and J. Jefferson, an officer with the OCS of the CDCR. (Complaint, Attach. at 2-3.)
On September 8, 2010, Reynoso searched Plaintiff's property and found a publication by George Jackson, the founder of the Black Guerilla Family ("BGF") prison gang, as well as a photograph of Jackson. (See Complaint, Attach. at 5, Exh. 1-2.) On September 23, 2010, Reynoso obtained a statement from a confidential informant identifying Plaintiff as a fellow member of the BGF. (See Complaint, Attach. at 7, Exh. 3.) On October 14, 2010, Reynoso and Cortez submitted a gang validation package containing evidence regarding Plaintiff's affiliation with the BGF. (See Complaint, Exh. 3.) The gang validation package informed Plaintiff that he had been identified as a BGF member, based on four separate source items, including Plaintiff's possession of the printed materials regarding George Jackson and the confidential informant's statement that Plaintiff was a BGF member. (Complaint, Exh. 3.) Reynoso and Cortez concluded that there was sufficient evidence to validate Plaintiff as a member of BGF. (Complaint, Exh. 5.) On December 2, 2010, defendants Brodie and Jefferson validated Plaintiff as a member of the BGF. (Complaint, Attach. at 8, Exh. 6.) As a result, Plaintiff has been confined to the Secured Housing Unit ("SHU").
Plaintiff alleges that defendants relied upon insufficient evidence to validate him as a BGF member. (See Complaint, Attach. at 3-4.) Plaintiff acknowledges that he was found to be in possession of the two George Jackson items, but denies that they show he is a BGF member. (Complaint, Attach. at 5-6.) He also alleges that the "inmate special agents" who provided information against him in the gang validation process are prison gang members who ...