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Balwinder Singh Tung v. Robert Doyle

December 14, 2010

BALWINDER SINGH TUNG,
PLAINTIFF,
v.
ROBERT DOYLE, ET AL.,
DEFENDANTS.



ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE (Doc. 24)

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 second amended complaint, filed December 7, 2010. (Doc. 24.)

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's complaint is thirty pages long and contains legal argument and case citations. Plaintiff names Defendants James Hartley, Warden Avenal State Prison, and staff; Matthew L. Cate, Secretary of California Department of Corrections and Rehabilitation and staff; Robert Doyle, Chairman of the California Board of Parole Hearings, and staff; Arnold Schwarzenegger, Governor of California, and staff; Daniel E. Lundgren, California Attorney General, and staff; Larry D. Morse, II, Merced County District Attorney, and staff; and prison wardens and staff at California State Prison - Solano, California Treatment Facility - Soledad, Folsom State Prison, Chuckawalla Valley State Prison; all successors and predecessors in interest; and Does one through infinity. (Doc. 24, § III.) Plaintiff is requesting eleven billion dollars, compensatory, punitive and exemplary damages, and injunctive and declaratory relief, and a finding that the parole hearings were held without jurisdiction and are void and invalid, immediate release, and that the actions of Defendants are criminal in nature. (Id., pp. 27-30.)

First Cause of Action

Plaintiff alleges he has been unlawfully detained since his calculated parole release date of August 28, 2001, due to the parole hearing not being held on August 28, 2000, which caused the board to lose jurisdiction. (Doc. 24, pp. 4-15.)

Second Cause of Action

Plaintiff claims that the "unconstitutional, uncon[s]cionable, outrageous overcrowding" has caused him to suffer cruel and unusual punishment because the stagnant and filthy air has caused him to develop pleuropneumonia. (Id., p. 16:7-14.) Additionally, Plaintiff details seven incidents, occurring at different prisons, where he was assaulted by inmates. In 2001, while Plaintiff was sleeping in his cell, his cellmate attacked him. Plaintiff alleges that if Defendants had not had two inmates in the cell, which was 21 square feet, he would not have been attacked. (Id., § 28.)

In 2002, Plaintiff was attacked and Defendants allegedly did nothing to prevent it, even though they had been informed of the risk before the assault occurred. (Id., § 29.) In 2004 and 2007, Plaintiff was assaulted due to "the unbearable overcrowding" after Plaintiff informed officials of the risk and requested he be moved. (Id., § 30.) In 2005, a guard told Plaintiff and his cellmate to unblock a vent or they would be charged with a rule violation. Plaintiff told his cellmate to unblock the vent and the cellmate attacked him. Plaintiff claims Defendants are responsible because the two inmates ...


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