FINDINGS AND RECOMMENDATION RECOMMENDING THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM (ECF No. 10) OBJECTIONS DUE WITHIN FOURTEEN DAYS
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Frederick Johnson, proceeding pro se and in forma pauperis, filed this employment discrimination action on July 26, 2013. (ECF No. 1.) The complaint was screened and dismissed with leave to amend on August 28, 2013. (ECF No. 4.) Plaintiff filed a first amended complaint on November 19, 2013, which was screened and dismissed with leave to amend on December 2, 2013. (ECF Nos. 8, 9.) Currently before the Court is Plaintiff's second amended complaint, filed January 2, 2014. (ECF No. 10.)
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss a case if at any time the Court determines that the complaint fails to state a claim upon which relief may be granted. In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). 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 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)).
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570). "[A] complaint [that] pleads facts that are merely consistent with' a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal , 556 U.S. at 678.
Plaintiff's second amended complaint is substantially the same as his first amended complaint. This action is brought against Defendants California Department of Corrections and Rehabilitation ("CDCR"); Valley State Prison ("VSP"); Warden Tina Hornbeak; Associate Warden Charles Callahan; Lieutenants B. McGraw and N. Schertz, and G. Hernandez; Correctional Food Manager Muhammad Mohktar; Assistant Correctional Food Manager G. Hernandez; and Correctional Officers S. Nitske and T. Price alleging retaliation in violation of the First Amendment, 42 U.S.C. § 2000e-3(a), and California Government Code §§ 8547 et al.; disparate treatment in violation of 42 U.S.C. 2000e-2(a); and violations his right to due process under the Fourteenth Amendment.
Plaintiff worked as a supervising cook at VSP for 18 years. (Second Am. Compl. 2, ECF No. 10.) In 2007, Plaintiff began documenting and keeping records of unnecessary labor costs, food waste, spoilage and contamination of food. Plaintiff reported the violations to his supervisor, Defendant Mohktar, and suggested ways to minimize labor costs. Plaintiff's reports and suggestions were ignored. Plaintiff was afraid of retaliation, so he sent two anonymous memorandums to state investigators on October 30, 2008. Nothing was done in response to these anonymous reports. (Id. at ¶ 11.)
In August of 2008, Plaintiff was given a letter by an inmate who suffers from mental illness. The letter, which was written by a different inmate, stated that Plaintiff had raped and assaulted her in 2007 and 2008. The letter implicated other staff members of wrong doing and accused a white staff member of assaulting her in front of two other officers. Plaintiff turned the letter over to Defendant McGraw. Plaintiff also provided copies of the letter to Defendant Mohktar, Lt. Bergerson, Sgt. Heffington and other staff members. The inmate who accused Plaintiff of this conduct was in the mental health unit on suicide watch at this time. Plaintiff was informed that the inmate would be transferred to Central California Women's Facility the following day. (Id. at ¶ 12.)
In December 2008, Plaintiff received a letter stating that he was under investigation due to the allegations in the letter. (Id. at ¶ 13.) Plaintiff was the only African American individual mentioned in the letter and was the only individual interviewed or placed under investigation. (Id. at ¶ 12.) Plaintiff informed Special Agent Stryd the he wanted to meet with him and tell him about the inmate who wrote the letter. Agent Stryd informed Plaintiff that it was not protocol for them to meet at that time and that Plaintiff would be contacted when the time was appropriate. (Id. at ¶ 13.)
Plaintiff was interviewed four times to promote to the position of Assistant Correctional Food Manager during 2008 and 2009. Plaintiff did not receive the promotions even though his job performance reflected that he met all expected standards. No one ever informed Plaintiff that he was unable to receive a promotion while he was the subject of an on-going investigation. (Id. at ¶ 14.)
On March 17, 2010, Plaintiff reported an incident in which he claimed to be the subject of harassment by Defendant Mohktar and requested a lateral transfer claiming he was subject to a hostile work environment due to his reporting the waste of food products. Plaintiff was informed that he was unable to be transferred while he was the subject of an investigation for misconduct. Plaintiff was also informed that he was the subject of several other on-going investigations of which he was unaware. (Id.)
Plaintiff contacted his Union representative and was informed that the Office of Internal Affairs would be coming to interview him regarding the allegations within the next several weeks. (Id. at 16.) On April 8, 2010, Plaintiff was escorted from work by Defendant Schertz and was told that he was under investigation for being overly-familiar with an inmate. Plaintiff was also informed that he had been observed receiving an unknown substance from an inmate who had pulled something out of her bra and stuck it in his mouth. Defendants Nitske and Price both stated ...