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Charles Moore v. Ken Clark

February 28, 2011

CHARLES MOORE,
PLAINTIFF,
v.
KEN CLARK, WARDEN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION

RECOMMENDING DISMISSAL WITH PREJUDICE OF PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM(ECF No. 10)

OBJECTIONS DUE IN THIRTY DAYS

I. PROCEDURAL HISTORY

Plaintiff Charles Moore ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR") proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the action on November 9, 2009. (ECF No. 1.) No other parties have appeared.

In a Screening Order filed December 27, 2010, the Court dismissed Plaintiff's Complaint for failure to state a claim upon which relief could be granted. (ECF No. 9.) Plaintiff filed his First Amended Complaint on January 28, 2011. (ECF No. 10.)

Plaintiff's First Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim.

II. SCREENING REQUIREMENTS

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).

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

III. SUMMARY OF COMPLAINT

Plaintiff claims violation of his First Amendment rights through retaliatory tactics and use of excessive force.*fn1 Plaintiff names R. Vogel as the only Defendant.*fn2

Plaintiff alleges the following: On October 1, 2008, Plaintiff was assaulted by Defendant with an MK-9 chemical weapon. Plaintiff suffered retaliatory injuries as a result of filing a lawsuit. Warden ...


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