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Jerry Lewis v. J. Jasso

August 22, 2011

JERRY LEWIS,
PLAINTIFF,
v.
J. JASSO, ET AL.,
DEFENDANTS.



ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE/ WITHIN THIRTY DAYS SCREENING ORDER

(ECF No. 13)

I. PROCEDURAL HISTORY

Plaintiff Jerry Lewis ("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 8, 2011. (ECF No. 1.) Plaintiff's original complaint was dismissed with leave to amend for failure to state a claim. (ECF No. 12.) On August 15, 2011, Plaintiff filed a First Amended Complaint, which is now before the Court for screening. (ECF No. 13.) No other parties have appeared.

For the reasons stated below, the Court finds that Plaintiff has 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 brings this action for violation of the Eighth Amendment. Plaintiff names the following individuals as Defendants: J. Jasso, J. Jones, and Natalie Clark.

Plaintiff alleges as follows: Throughout 2010 and to the present, Defendant Jasso served contaminated foods on contaminated plastic food trays in unsanitary environments. The trays are not sufficiently cleaned leaving food from previous meals caked on the trays. Plaintiff refuses to eat the food brought on the trays because the contaminated food has made him sick in the past. Much of the food delivered to Plaintiff looks spoiled and sour and smells. Defendant Jones supervises inmates working in the food services department. Defendant Clark is also a supervisor.

Plaintiff seeks monetary damages and injunctive relief.

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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