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Tommy Joe Holmes v. A. K. Scribner

May 10, 2011

TOMMY JOE HOLMES,
PLAINTIFF,
v.
A. K. SCRIBNER, ET AL.,
DEFENDANTS.



FIRST AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER (ECF No. 15)

I. PROCEDURAL HISTORY

Plaintiff Tommy Joe Holmes ("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 this action on February 2, 2009. (ECF No. 1.) Plaintiff's original complaint was dismissed with leave to amend for failure to state a cognizable claim. (ECF No. 10.) Plaintiff filed a First Amended Complaint on March 16, 2011. (ECF No. 15.) No other parties have appeared.

It is this First Amended Complaint that is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has again failed to state any claims 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 Eighth, Fourteenth, and First Amendment rights. Plaintiff names the following individuals as Defendants: A. K. Scribner, D. Stockman, D. Sheppard-Brooks, M. E. Poulos, R. R. Lowden, N. Dill, V. Garcia, W. J. Hill, H. Cervantez,

A. Pyle, T. Banks, and C. Cortez.

Plaintiff alleges as follows: On March 29, 2004, Plaintiff was placed in administrative segregation ("ad-seg") and given a copy of the ad-seg placement order which claimed that Plaintiff had conspired to murder/assault prison officials. On April 5, 2004, Plaintiff was brought before Defendant Lowden for ad-seg placement review on the charge of conspiracy to assault a prison official. On April 7, 2004, Plaintiff appeared before the institution classification committee ("ICC") for the initial review of his ad-seg placement. ICC retained Plaintiff in ad-seg pending an investigation, to be reviewed again in 90 days by the classification staff representative. On April 12, 2004, Plaintiff was again brought before Defendant Lowden for ad-seg placement review and he received a copy of the confidential report identifying him in the conspiracy to murder. On April 13 and July 14, 2004, Plaintiff again appeared before the ICC for a review of his ad-seg placement. ICC again retained Plaintiff in ad-seg pending an investigation, to be reviewed again in 90 days by the classification staff representative.

On August 17, 2004, the investigation was complete. On October 20, 2004, Plaintiff appeared before the ICC for review of a charge of threatening staff and transfer consideration.*fn1 On November 5, 2004, Plaintiff was issued an ad-seg placement order authored by Defendant Hill, which stated that Plaintiff had been found guilty of attempted murder on a peace officer. On November 10, 2004, Plaintiff again appeared before the ICC for review of his placement for threatening staff/transfer consideration.

Plaintiff was retained in ad-seg for approximately one year.

Plaintiff seeks injunctive relief, compensatory, punitive, and declaratory damages, attorney fees, and costs.

IV. ANALYSIS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. ยง 1983. "Section 1983 . . . creates a cause of action for violations of the federal ...


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