The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
THIRTY-DAY DEADLINE ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE
Plaintiff Aaron Robinson, a former state prisoner proceeding pro se
and in forma pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on January 23, 2009. The Court is required to screen
complaints brought by prisoners seeking relief against a governmental
entity or officer or employee of a governmental entity.*fn1
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 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal, 129 S.Ct. at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
Plaintiff alleges that when he was incarcerated at the California Correctional Institution in Tehachapi, his rights under the Eighth Amendment of the United States Constitution were violated by Defendant Timoneon, a sergeant; and Defendants Perez, Deusenberger, Robinson, and Amos, who are correctional officers. Plaintiff seeks damages and the appointment of counsel.
Plaintiff alleges that Defendant Timoneon called Plaintiff "his bitch" and coerced Plaintiff into calling him "his Daddy." (Doc. 1, Comp., court record p. 5.) Defendant Timoneon threatened to set Plaintiff up by planting an inmate-manufactured weapon, take away Plaintiff's sensitive needs yard chrono, and house Plaintiff with a documented enemy or enemies.
Plaintiff alleges that Defendant Perez removed Plaintiff's elbow from the wall and struck himself in the face with it; and threatened to falsely charge Plaintiff with battery on a peace officer, physically harm Plaintiff, and house Plaintiff in general population while substantiating Plaintiff's sensitive needs yard status.
Defendant Deusenberger falsely alleged that he found a twelve inch steel weapon in Plaintiff's secured living area during a search and told Plaintiff that things like that could happen to Plaintiff if he did not "follow the program." (Id., p. 6.)
When Plaintiff was on the wall in a search/frisk stance position, Defendant Robinson cornered Plaintiff and raised his baton as if he was going to strike Plaintiff and made a striking motion toward Plaintiff in a physically forceful manner. During the same incident, Defendant Amos was ...