The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFFS'S COMPLAINT FOR FAILURE TO STATE A CLAIM (ECF No. 2)AMENDED COMPLAINT DUE SEPTEMBER 14, 2011
Plaintiff Michael Gonzales ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant action in Kings County Superior Court on August 17, 2010. (Notice of Removal Ex. A at 1, ECF No. 2.) Defendants were served on or about October 18, 2010. (Notice of Removal at 2.) Defendants filed a Notice of Removal on November 17, 2010. (Id.) Plaintiff filed a Motion to Remand on December 6, 2010. (Mot., ECF No. 7.) Plaintiff also filed Objections to Defendants' Notice of Removal. (Objections, ECF No. 8.) Plaintiff's Motion to Remand was addressed in the Court's August 5, 2011 Findings and Recommendation; the Court recommended that Plaintiff's Motion be denied. (ECF No. 9.)
Plaintiff"s original Complaint is now before the Court for screening.
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, ___ U.S. ___, ___, 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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Plaintiff is currently incarcerated at Corcoran State Prison. He brings this action for alleged violations of his First Amendment right to petition the courts, his Fourteenth Amendment right to due process, his Eighth Amendment right to be free from cruel and unusual punishment, as well as violations of unspecified sections of the California Constitution. Plaintiff names the following individuals as Defendants: B. Saunders, J. Leal, R. Cortez, J. Garcia, E. G. Hernandez, and K. Matta, in their individual and official capacities. Plaintiff has also served Edmund G. Brown as a Defendant, even though he is not named in Plaintiff's original Complaint. (Notice of Removal Ex. A at 1.)*fn1
Plaintiff alleges as follows:
Plaintiff's incoming and outgoing mail has been interfered with. His self-created artwork, poetry, books, and greeting cards, which he sells through the postal service, have been confiscated by Defendants Garcia, Leal, and Hernandez. These Defendants have also given Plaintiff's artwork to other inmates. Defendants Leal and Hernandez have destroyed Plaintiff's artwork. Defendant Hernandez stole a copy of Plaintiff's books on May 20, 2010. Defendant Leal stole a copy of Plaintiff's artwork on the same day. Defendant Leal stole copies of Plaintiff's books and drawings on June 14, 2010. Plaintiff believes that Defendants may have stolen his artwork due to racism and/or because of their sympathies for a specific gang.
Plaintiff has also had problems with mailing his legal documents and has been denied access to the courts as a result of Defendants' actions. There appears to have been at least five separate instances where Defendant was in some way prevented from mailing his legal documents:
1. On June 24, July 4, and July 10, 2010, Defendants Leal, Hernandez,
and Garcia returned Plaintiff's mailings on an excessive force claim
against Defendants Cortez by repeatedly stuffing them under his door.
Plaintiff's mailings were addressed to the courthouse of the Eastern
District of California at 1130 O Street, Fresno, CA.*fn2
Defendants Leal, Hernandez, and Garcia informed Plaintiff
that this was the incorrect address. Defendants returned these
documents to him because they wanted to prevent him from exercising
his civil rights;
2. On July 9, 2010, Plaintiff received an undelivered package that he had tried to mail in connection with another case for excessive force against Defendant Cortez.
Plaintiff believes that Defendants Hernandez, Matta, and Cortez worked together to prevent this mailing from going out and that Defendant Matta was responsible for removing the brief from the mailing. Even though this mailing contained legal documents, Plaintiff did not receive any legal mail verification slip when the mailing was returned to him;
3. Plaintiff received returned mail on the Gonzales v. Price, matter, which he sent to the Eastern District of California using the 1130 O Street, Fresno, CA address;
4. Plaintiff has tried to file a tort claim against Ben Velo and Brian Gupton but and has received no response; and
5. On July 17, 2010, Defendant Cortez removed from Plaintiff's cell drawings that Plaintiff was going to use as exhibits in his excessive force case against Defendant Cortez. Defendant Cortez returned the drawings to Plaintiff only after Plaintiff complained to Lieutenant Munoz. Defendant Cortez did not return Plaintiff's legal mail envelopes in which the drawings were contained. Defendant Cortez also made insulting comments to Plaintiff when he returned the drawings and referred to Plaintiff's mailings as "rat mail."
Plaintiff's daughter and his daughter's mother have been receiving derogatory letters from inmates. Plaintiff alleges that prison officers*fn3 gave inmates the address of his daughter and his daughter's mother. He also claims that he has lost communication with his friends and family as a result of Defendants Leal, Garcia, and Hernandez's actions.
In addition to his mail related claims, Plaintiff believes that his food contains antipsychotic medications. Plaintiff overheard correctional officers Beebe and Gadson*fn4 state that it would be possible to medicate prisoners' food. Plaintiff believes that there was medication in his food because at some point, his tongue became numb after eating. Plaintiff has hepatitis C and his liver could be damaged if he was forced to unknowingly take drugs. Plaintiff does not have a mental disorder and he is not a threat to himself or others. He alleges that medicated food causes blurry version, stomach acid, low blood pressure, bowel pain, constant urination, and short term memory loss, among other things. Plaintiff has had to take medications to counteract his stomach acid.
Plaintiff has made 602 appeals on these issues, but was unable to obtain copies of these appeals for the litigation at hand even though he made photocopy requests. Plaintiff sent in a photocopy request, but Defendant Hernandez informed Plaintiff that he would not be receiving his photocopies.
Plaintiff believes that in retaliation for exercising his civil rights, prison officials have called him names and have used other inmates to harass and mock him.
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. ...