ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER § 1983 (Doc. 9.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE STRIKES" PROVISION OF 28 U.S.C. § 1915(g)
GARY S. AUSTIN, Magistrate Judge.
Willie Bolds ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 29, 2012. (Doc. 1.)
On November 7, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. 636(c), and no other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on March 21, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On April 24, 2013, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 9.)
II. SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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 is required to contain Aa 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, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, 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). Plaintiff must set forth "sufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id . The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009).
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at California State Prison-Lancaster in Lancaster, California. The events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff names as defendants J. Cavazos (Chief Deputy Warden), F. Field III (Associate Warden), Sergeant J. Gonzales, R. Davis (Appeals Examiner), and J. D. Lozano (Chief of Inmate Appeals). Plaintiff's factual allegations follow.
On February 10, 2012, under the supervision of Sergeant J. Gonzales, prison officials used a well-established state procedure to unreasonably seize and dispose of Plaintiff's television set. Plaintiff was using the television set in the practice of his sincere Christian religious beliefs, and loss of the television set "substantially burden[s]" Plaintiff. (ACP, Doc. 9 at 3 ¶IV.)
On February 15, 2012, Plaintiff filed an inmate grievance, and on March 15, 2012, he received a First Level response by Sgt. J. Gonzales. By his response, Sgt. J. Gonzales improperly participated in two capacities in the same event being appealed, as the supervisor of the event being grieved, and as the reviewer. Plaintiff alleges that by these actions, Sgt. J. Gonzales violated Plaintiff's rights under the First and Fourth Amendments.
Defendants F. Field III (Associate Warden), J. Cavazos (Chief Deputy Warden), R. Davis (Appeals Examiner), and J. D. Lozano (Chief of Inmate Appeals) subsequently reviewed
Plaintiff's appeal at the First, Second, and Third Levels of review and failed to address the fact that Sgt. J. Gonzales improperly participated in the appeal in two capacities. Plaintiff alleges that by their omission, these defendants also ...