The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 44)
ORDER DISREGARDING PLAINTIFF'S MOTION FOR CERTIFICATE OF APPEALABILITY (ECF No. 40)
ORDER FOR CLERK TO SERVE COPY OF THIS ORDER ON NINTH CIRCUIT
Plaintiff Thomas D. Braley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed September 28, 2007. On April 6, 2011, Plaintiff filed a motion for a certificate of appealability. (ECF No. 40.) Currently pending before the Court is the first amended complaint filed April 22, 2011. (ECF No. 44.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard 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. 554, 555 (2007)).
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently incarcerated at Salinas Valley State Prison. In his amended complaint Plaintiff summarizes multiple actions he has had proceeding in various courts.
Under section 1983, Plaintiff is required to show that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability under section 1983, and therefore, each defendant is only liable for his or her own misconduct. Iqbal, 129 S. Ct. at 1948-49.
In this instance, Plaintiff has not sufficiently linked the defendants named in his complaint to any acts or omissions that purportedly led to the violation of those rights. For example, Plaintiff alleges that on September 19, 2007, he was attacked in his cell while staff looked on from the armed tower and did nothing until it was discovered that a sergeant was coming. (Amend. Compl. 6-7, ECF No. 44.) Plaintiff was taken to the clinic, but medical staff were not allowed to treat him because of all the blood. He requested medical assistance and did not receive treatment until after 10:00 p.m. On September 19, 2007, medical staff ordered that x-rays be taken, however they were not taken until September 21, 2007. Plaintiff's broken arm was not placed in a cast until September 25, 2007. (Id. at 7.)
Plaintiff's assertions do not suffice to show that Plaintiff's constitutional rights were violated by any named defendant. Iqbal, 129 S. Ct. at 1949-50. The allegations contained in the complaint do not link any defendant to any act or failure to act that violated his constitutional rights. Iqbal, 129 S. Ct. at 1949 ("Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."); Jones, 297 F.3d at 934; George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) ("Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.").
Plaintiff also alleges that since he was transferred on October 12, 2009, he has been deprived of his legal property and has been charged with rule violations. (Id. 8-12.) Plaintiff may not raise his claims for denial of access to the court in violation of the First Amendment and deprivation of Due Process due to rule violation reports here as he could not have exhausted administrative remedies prior to the date he filed this action. 42 U.S.C. § ...