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Larry Percival v. J. Clark Kelso

April 5, 2011

LARRY PERCIVAL,
PLAINTIFF,
v.
J. CLARK KELSO, ET AL., DEFENDANTS.



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

SECOND AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND THIRD AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

(ECF No. 19)

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Larry Percival ("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 filed his original complaint September 28, 2009 and consented to Magistrate Judge jurisdiction on November 19, 2010. (ECF Nos. 1 & 13.) He was given leave to amend his complaint and did so on December 23, 2010. (ECF Nos. 16 & 17.) Plaintiff's First Amended Complaint was dismissed with leave to amend on March 1, 2011. (ECF No. 18.) Plaintiff filed a Second Amended Complaint on March 18, 2011. (ECF No. 19.)

Plaintiff's Second Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has again failed to state a claim upon which relief may be granted.

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 alleges violations of his First Amendment rights. He names the following individuals as Defendants: R. Fisher, Captain; S. Nail, Sergeant; R. Garza, Correctional Officer. Defendants were all employed at California Substance Abuse Treatment Facility at Corcoran ("CSATF") at the time of the alleged incidents.

Plaintiff alleges the following: On November 6, 2008, Plaintiff watched as Defendant Nail physically assaulted a handcuffed wheelchair-bound inmate. Afterwards, Defendant Nail told Plaintiff that "if [Plaintiff] had anything to say about it, [Plaintiff] would be shot for assaulting staff." (ECF No. 19, p. 3; Pl.'s 2nd Am. Compl. p. 3.) Plaintiff wrote a letter describing Nail's actions and sent it to the Director of Corrections who, in turn, returned it to CSATF for investigation. Plaintiff was interviewed by another officer*fn1 . In Plaintiff's absence, Defendants Nail and Garza searched Plaintiff's cell. They claimed to have found a "tomahawk" razor weapon in the cell.

Plaintiff's cell was searched a second time on January 6, 2009 by Defendant Nail. After the search, Plaintiff found a razor planted by Nail in his cell. He sent the razor along with a 602 grievance describing Nail's actions to the Director. The 602 was returned to CSATF for investigation by Defendant Fisher. Fisher issued Plaintiff a CDCR-115 for possession of a weapon.

Plaintiff seeks compensatory damages and return of good time credit.

IV. ANALYSIS

The Civil Rights Act under which this action was ...


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