The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY (30) DAYS
Plaintiff Demitrius M. McClendon("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, California ("CSATF/SP"). Plaintiff names W. Gardner (correctional officer), Turner (correctional sergeant), Mayfield (correctional sergeant), S. Zuinani (appeals coordinator), and Ken Clark (warden/supervisor) as defendants. For the reasons set forth below, the Court finds that Plaintiff's complaint fails to state any claims under Section 1983. The Court will dismiss Plaintiff's complaint with leave to file an amended complaint which cures the deficiencies identified in this order.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used 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. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[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.'" Id. (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. Id. "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).
The complaint in this action was filed on May 5, 2010. This lawsuit was originally filed on behalf of Plaintiff, as well as Demitrius M. McClendon and Antonio P. Youmans. The three plaintiffs requested certification of this lawsuit as a class action. On February 11, 2011, the Court denied class certification and also severed the lawsuit so that each plaintiff would proceed in his own lawsuit. (Doc. #19.)
Plaintiff claims that Defendants violated his rights under the U.S. Constitution by losing his quarterly package. Plaintiff "filed a 602*fn1 in regards that his package has come up missing." (Compl.¶ 36, ECF No. 1.) Plaintiff spoke with Defendant Mayfield regarding his package and Mayfield informed Plaintiff that the package could not be located. Plaintiff also "submitted several Inmate Request for Interview forms to Mayfield" but did not receive any responses. (Compl. ¶ 38, ECF No.1.) Plaintiff submitted his 602 to the appeals coordinator's office. Defendant Zuinani rejecting Plaintiff's 602, "stating that it was too great a time lapse." (Compl. ¶ 39, ECF No. 1.) Plaintiff then submitted his 602 to "the Chief Inmate Appeals to compel the appeals coordinator to accept and adjudicate his appeal, or possibly hear his appeal." (Compl. ¶ 40, ECF No. 1.) The Inmate Appeals Office informed Plaintiff that the appeal was either rejected, withdrawn, or canceled at the institution level.
Plaintiff's complaint raises five separate causes of action. Plaintiff's first cause of action claims that Defendants are liable under California Government Code § 815.6 for failing to discharge a mandatory duty. Plaintiff's second cause of action claims that Defendants are liable under 42 U.S.C. § 1983 for their "[f]ailure to [p]rotect." Plaintiff's third cause of action claims that Defendants are liable under Section 1983 for their "[n]egligent [s]upervision." Plaintiff's fourth cause of action claims that Defendants are liable under Section 1983 for their "[w]illfull[sic] and
[w]anton [c]onduct." Plaintiff's fifth cause of action claims that Defendants are liable under Section 1983 for violating Plaintiff's due process rights.
For the reasons set forth below, the Court finds that Plaintiff's complaint fails to state any cognizable claims under Section 1983. Since Plaintiff's complaint does not state any federal claims, the Court will refrain from discussing the merits of ...