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Peralta v. Martel

June 24, 2010

CION PERALTA, #P-33314, PLAINTIFF,
v.
M. MARTEL; D. LONG; L. OLIVAS; AND R. WILLIAMS, DEFENDANTS.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. 25)

Plaintiff Cion Peralta filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff, who proceeds pro se and in forma pauperis, is incarcerated at Mule Creek State Prison in Ione, California. He alleges in his Second Amended Complaint that while incarcerated, Defendant prison officials prevented him from attending religious services, in violation of the First Amendment to the United States Constitution.

Defendants move to dismiss Plaintiff's Second Amended Complaint for failure to exhaust administrative remedies and for violating the "three strikes" rule of 28 U.S.C. § 1915(g). The motion is GRANTED.

PROCEDURAL HISTORY

On March 10, 2008, Plaintiff filed a Complaint, (Doc. 1), and an Application To Proceed In Forma Pauperis By A Prisoner, (Doc. 2).

On May 23, 2008, the Court filed an order granting Plaintiff's Application To Proceed In Forma Pauperis and dismissing Plaintiff's Complaint, with leave to amend. (Doc. 7.) On the same day, the Court filed an order directing the California Department of Corrections and Rehabilitation to collect monthly payments from Plaintiff's prison trust account to pay the $350 statutory filing fee. (Doc. 8.)

On June 3, 2008, Plaintiff filed a First Amended Complaint. (Doc. 9.)

On July 8, 2008, the Court filed an order dismissing Plaintiff's First Amended Complaint, with leave to amend. (Doc. 10.)

On July 18, 2008, Plaintiff filed a Second Amended Complaint. (Doc. 11.)

On March 16, 2009, the Court filed an order dismissing Plaintiff's Second Amended Complaint in part and directing service on Defendants. (Doc. 14.)

On March 3, 2010, Defendants filed a Motion To Dismiss. (Doc. 25.)

On April 2, 2010, Plaintiff filed an Opposition. (Doc. 27.) On April 15, 2010, Defendants filed a Reply. (Doc. 28.) Pursuant to Local Rule 78-230(h), the Court elected to decide Defendants' Motion To Dismiss on the pleadings. (Doc. 26.)

STANDARD OF REVIEW

An allegation fails to state a claim upon which relief may be granted if it is clear that plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).

The court must accept the complaint's allegations as true, Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construe pleadings in the light most favorable to plaintiff, and resolve all doubts in plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) (the court must construe pro se pleadings liberally and afford pro se litigants the benefit of any doubt). The court, however, is not required to accept as true any conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

If a pleading can be cured by the allegation of additional facts, a pro se litigant is entitled to an opportunity to amend the complaint before dismissal. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). A district court ...


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