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Tung v. Doyle

November 10, 2010



(Doc. 17)


I. Screening Requirement

Plaintiff Balwinder Singh Tung ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on March 31, 2008. (Doc. 1.) Currently before the Court is the first amended complaint, filed February 26, 2009. (Doc. 17.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 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).

"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[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, 129 S.Ct. at 1949 (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, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Complaint Allegations

Plaintiff alleges that his parole hearings on May 3, 2001; November 25, 2002; April 21, 2004; August 14, 2006; and September 8, 2008, were held after the date required and therefore the parole boards did not have jurisdiction. (Doc. 17, Amend. Comp., pp. 8:3-11:25.)

Additionally, Plaintiff alleges that he has been the victim of seven assaults since May 13, 2001. (Id., p. 12:1-3.) Plaintiff was attacked on May 14, 2007, while he was housed at Avenal State Prison ("ASP"); on or about March 4, 2006, at Chuckawalla Valley State Prison ("CVSP"); May 4, 2005, at Soledad Correctional Training Facility ("SCTF") in which he suffered a fractured rib; on May 18 and April 9, 2004, at ASP in which he suffered a fracture of the mandible; on July 7, 2002, at Folsom State Prison ("FSP") in which Plaintiff had displacement of the temporomandibular joint; and on May 13, 2001, at California State Prison, Solano ("CSPS"). (Id., p. 12:4-13:18.)

On May 14, 2007, at approximately 2:10 p.m., Plaintiff was attacked from behind while he was opening up his assigned locker. (Id., 14:4-6.) An unknown person struck Plaintiff numerous times causing him to bleed profusely and scream in pain. (Id., 14:11-15.) On the same day, while Plaintiff was in the sergeant's office his property was stolen. (Id., 14:21-27.) Defendant Hartley and his staff failed to discover who attacked Plaintiff and stole his property. (Id., 15:1-4.)

Plaintiff names Defendants Robert Doyle, Chairman of the California Board of Parole Hearings, and staff; Matthew L. Cate, Secretary of California Department of Corrections and Rehabilitation ("CDCR") and staff; J. W. Haviland, Warden of CSPS, and staff; James D. Hartley, Warden ASP, and staff; A.P. Kane, Warden of SCTF, and staff; D. K. Butler, Warden of FSP, and staff; J.F. Salazar, Warden at CVSP, and staff; Daniel E. Lundgren, California Attorney General, and staff; Larry D. Morse, II, Merced County District Attorney, and staff; Arnold Schwarzenegger, Governor of California, and staff; all successors and predecessors in interest; and Does one through infinity. (Id., pp. 6:7-7:14.) Plaintiff is requesting ...

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