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William Nible v. State A Claim Kelley Harrington

February 7, 2011

WILLIAM NIBLE,
PLAINTIFF,
v.
STATE A CLAIM KELLEY HARRINGTON, ET AL.,
DEFENDANTS.



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

(Doc. 1)

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

Screening Order

I. Screening Requirement

Plaintiff William Nible, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 13, 2009.*fn1 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." V

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 misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Summary of Allegations

Plaintiff is incarcerated at Kern Valley State Prison (KVSP), and he brings this action for violation of his rights under the Eighth Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and California law. Plaintiff's claims arise out of the exercise and recreation policies in place at KVSP.

Inmates in the A1A privilege group are receiving six to eight hours of recreation time per week, which falls below the ten hours per week they are supposed to receive pursuant to state regulations. Inmates in the A1A privilege group work and "program" the most, but they receive fewer recreation hours than inmates in the A2B privilege group, who do not work. Plaintiff contends that KVSP is able to comply with the state-mandated weekly ten hour recreation requirement, but it is intentionally failing to do so.

Plaintiff names Warden Kelley Harrington, former Warden A. Hedgpeth, Associate Warden D. D. Ortiz, Captain P. R. Sanchez, Captain Soto, Sergeant Sell, Sergeant R. Barrett, and Does 1-100 as defendants. Plaintiff seeks declaratory relief, injunctive relief, and damages.

B. Federal ...


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