FIRST AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS SCREENING ORDER
Plaintiff Tyrone Torrence Holmes 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 November 9, 2009 and consented to Magistrate Judge jurisdiction on November 24, 2009. (ECF Nos. 1 & 5.) Plaintiff's original complaint was dismissed, with leave to amend, for failure to state a claim. (ECF No. 11.) On March 17, 2011, Plaintiff filed his First Amended Complaint. (ECF No. 14.) 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's First Amended Complaint fails 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 brings this action for violations of his right to due process under the Fourteenth Amendment and a claim of retaliation in violation of the First Amendment. Plaintiff names the following individuals as Defendants: Cable, Correctional Officer, Receiving and Release ("R&R") Property Officer; and E. Noyce, Correctional Officer, Sergeant R&R. Both Defendants were employed at Tehachapi State Prison at the time of the incident.
Plaintiff alleges as follows: On April 16, 2008, Defendant Cable came to Plaintiff's cell and gave Plaintiff two options in relation to his property: 1) sign the unauthorized form disallowing Plaintiff's property; or 2) sign the allowable property form. Plaintiff noticed that all of his personal property was listed for option 2, and then told Cable that he would be appealing this matter. Cable responded that the secured housing unit ("SHU") would not store personal property, and then stated that he would hold Plaintiff's property for 45 days and that Plaintiff should direct his 602 appeal to Cable because he is the issuing officer. Plaintiff sent in his 602 appeal, which was returned to him signed by an unknown officer. Plaintiff's property was then, apparently, destroyed.
Plaintiff was interviewed at the First Level of appeal by Defendant Noyce who asked Plaintiff to sign a different consent form. Plaintiff refused so Noyce ordered that Plaintiff's television be removed from his cell.
Plaintiff seeks compensation for pain and suffering and legal fees.
The Civil Rights Act under which this action was ...