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Vernon D. Carroll v. Ken Clark

January 27, 2011

VERNON D. CARROLL, PLAINTIFF,
v.
KEN CLARK, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

(Doc. 1)

Screening Order

I. Screening Requirement

Plaintiff Vernon D. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans with Disabilities Act) on September 28, 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. 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).

II. Summary of Complaint

Plaintiff's complaint is three-hundred ninety-four pages long, is neither concise nor clear.*fn1

Plaintiff appears to be trying to bring claims for violation of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and the Americans with Disabilities Act (ADA), along with claims for violation of remedial plans in other civil cases that involved prison conditions in California. Plaintiff's claims appear to arise from the confiscation of his wheelchair and cane, his removal from a lower bunk/lower tier housing assignment, his removal from the Developmental Disability Program, discrimination in violation of the ADA, and inadequate or inappropriate medical care, including the failure to treat his ADHD. Plaintiff also alleges various violations of the California Penal Code.

Plaintiff may not sue Defendants for violation of the penal code. SeeGonzaga University v. Doe, 536 U.S. 273, 283-86, 122 S.Ct. 2268 (2002) (basing a claim on an implied private right of action requires a showing that the statute both contains explicit rights-creating terms and manifests an intent to create a private remedy); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for violation of criminal statutes). However, Plaintiff may be able to allege sufficient facts to state claims for violation of his rights under the Constitution or the ADA. In the sections that follow, Plaintiff is provided with the legal standards he should utilize in drafting his amended complaint.

III. Rule 8 Requirements

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 (2007)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendantpersonally 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). The mere possibility of ...


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