ORDER: (1) DISMISSING CERTAIN DEFENDANTS AND CLAIMS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b); AND (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT ON REMAINING DEFENDANTS
[ECF Nos. 10, 11]
ROGER T. BENITEZ, District Judge.
Before the Court is Plaintiff's First Amended Complaint ("FAC"). For the reasons stated below, the Court dismisses certain defendants and claims pursuant to 28 U.S.C. 1915(2)(2) & 1915A(b) and directs the U.S. Marshal to effect service of the FAC on the remaining defendants.
I. Procedural History
On September 21, 2012, Danny Montana Guerra ("Plaintiff"), a state prisoner incarcerated at Calipatria Prison in Calipatria, California, and proceeding pro se, filed a civil rights Complaint pursuant to 28 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). On January 3, 2013, this Court granted Plaintiff's Motion to Proceed IFP but sua sponte dismissed his Complaint for failing to state a claim upon which relief may be granted. (ECF No. 4.) The Court informed Plaintiff that he could file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. ( Id. ) On February 22, 2013, Plaintiff filed a motion for reconsideration (ECF No. 10) as well as the FAC (ECF No. 11).
II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
The Prison Litigation Reform Act ("PLRA") requires courts to review complaints filed by prisoners against officers or employees of governmental entities and dismiss those or any portion of those found frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). Prior to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner's suit make and rule on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule of Civil Procedure 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to amend unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) and Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)).
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal construction is "particularly important in civil rights cases, " Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may not "supply essential elements of the claim that were not initially pled, " Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff's complaint is brought under 42 U.S.C. § 1983. He asserts that he was a victim of retaliation in violation of the First Amendment due to his litigation activities. He also alleges that his Fourteenth Amendment due process rights were violated when he was repeatedly denied a clerical job based on false information in his file.
A. Due Process Claims
Plaintiff alleges that his Fourteenth Amendment due process rights were violated when he was denied a clerical job and required to take a janitorial job instead.
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). In some cases, state statutes and prison regulations may grant prisoners liberty interests sufficient to invoke due process protections. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly limited such instances. Pursuant to Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner must allege a change in confinement that imposes an "atypical and significant hardship... in relation to the ordinary incidents of prison life." Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997).
The Ninth Circuit has consistently held that "the Due Process Clause of the Fourteenth Amendment does not create a property or liberty interest in prison employment.'" Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986), and citing Baumann v. Az. Dep't of Corr., 754 F.2d 841, 846 (9th Cir. 1985)); see also Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997); Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985); Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir. 1986) ("There is no constitutional right to prison wages and any such compensation is by the grace of the state.") Plaintiff is unable to demonstrate either a liberty or property interest in his prison employment arising directly under the Fourteenth Amendment. Accordingly, claims brought under the Fourteenth Amendment are dismissed.
B. First Amendment Retaliation Claims
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Plaintiff seeks to hold Defendants liable for allegedly ...