MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
JOHN E. McDERMOTT, Magistrate Judge.
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"). On May 14, 2013, the Court dismissed the Complaint with leave to amend. On July 15, 2013, Plaintiff filed a First Amended Complaint ("FAC").
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 FAC under the relevant standards and for the reasons discussed below, the Court finds that the FAC 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. (FAC at 2-3.)
On September 8, 2010, Prison staff at the California Department of Corrections and Rehabilitation ("CDCR") California Men's Colony (CMC) searched Plaintiff's property and found a book by George Jackson, the founder of the Black Guerilla Family ("BGF") prison gang, and a pamphlet entitled "The Legacy of George Jackson" bearing a photograph of Jackson and authored by Talib Y. Rasheed. (FAC at 5.) On the same date, Defendant Reynoso reviewed these items and concluded they were indicative of Plaintiff's membership in and/or association with the BGF gang. (FAC at 9.) On September 23, 2010, Reynoso obtained a statement from a confidential informant identifying Plaintiff as an active fellow BGF member. (FAC at 9.) On October 14, 2010, Reynoso and Cortez submitted a gang validation package containing evidence regarding Plaintiff's affiliation with the BGF. (FAC at 10.) 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. (FAC at 10.) On October 15, 2010, Reynoso interviewed Plaintiff regarding the documents used in the gang validation package. (FAC at 10.) Plaintiff provided a written statement concerning the documents in question. (FAC at 10.) Reynoso stated: "You like cop killing niggers, you get validated for it." (FAC at 10.) Reynoso and Cortez concluded that there was sufficient evidence to validate Plaintiff as a member of BGF. (FAC at 10.) During the investigation of Plaintiff's gang membership, Cortez made the following "racial comment" directed at Plaintiff: "We are going to validate all you monkeys." (FAC at 11.) Cortez On December 2, 2010, defendants Brodie and Jefferson validated Plaintiff as a member of the BGF. (FAC at 16.) As a result, Plaintiff has been confined to the Secured Housing Unit ("SHU"). (FAC at 17.)
Plaintiff does not dispute that he was found to be in possession of the two George Jackson items, but denies that they show he is a BGF member. (FAC at 21.) Plaintiff claims that Defendants violated his First Amendment right to free speech by confining him to the SHU as punishment for possessing legal publications, violated his constitutional rights by confining him to an indefinite SHU term, discriminated against Plaintiff based on race in confining him to the SHU, and violated his due process rights by: relying on insufficient evidence to support the gang validation findings; relying on his "status" as a gang member to confine him to the SHU; and using impermissibly vague gang validation procedures, such that Plaintiff had insufficient notice that his actions could lead to gang validation. (FAC at 5, 7-8, 11-12, 17-20.) Plaintiff complains that defendants' actions violated his First, Eighth, and Fourteenth Amendment rights, as well as CDCR regulations. (FAC at 5, 7-8, 11-12, 17-20.)
Plaintiff seeks compensatory and punitive damages, and injunctive relief, including; an order compelling defendants to release him immediately from the SHU and return him to the general prison population; an order removing from his prison file all references to the BGF; an order requiring Defendants to promulgate fair regulations that accomplish the following: give inmates notice of the symbols, images, written materials etc. that indicate gang membership/association for the purposes of gang validation; abolish the practice of relying on African-American literature and symbols of the civil rights movement as a proxy for gang membership; and cease the practice of relying on inmates' gang membership status as a basis for an indeterminate SHU term, and rely instead on misconduct. (FAC at 6, 28.)
Having reviewed the FAC pursuant to the standards set forth above, the Court has determined that Plaintiff's claims still do not ...