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Richard Kelly v. D. Jackson

August 23, 2011

RICHARD KELLY,
PLAINTIFF,
v.
D. JACKSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PLAINTIFF'S ACTION FOR FAILURE TO STATE A CLAIM (DOC. 1) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS

Findings And Recommendations

I. Background

Plaintiff Richard Kelly ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on November 2, 2010, in Santa Clara County Superior Court. Doc. 1. On February 22, 2011, Defendants M. White, R. Boccella, D. Jackson, J. Gutierrez, J. Hartley, R. Roberts, M. Tuntakit, A. Vargas, and J. Gibson removed the action to this Court. Id.

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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary Of Complaint

Plaintiff was previously incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. Plaintiff names as Defendants correctional officers Jackson, Gibson, and Roberts. Plaintiff also names Defendants J. Gutierrez, A. Vargas, M. Tuntakit, James D. Hartley, R. Boccella, M. Whiteman, and Does 1 through 10 in the caption of his complaint.

Plaintiff alleges the following. On August 26, 2010, at approximately 3:30 a.m., correctional officer Alvarez woke up Plaintiff for a.m. kitchen worker release. Plaintiff informed officer Alvarez to inform someone that he was not going because he was given a job change that he did not want, and was willing to take a CDC 115 write up for it.

At 3:45 a.m., officer Alvarez informed Plaintiff that a sergeant would be in the building to talk with him. At 4 a..m., Defendants Gibson and Roberts came to Plaintiff's building. Plaintiff explained to Defendant Gibson what he had told officer Alvarez. Plaintiff was told to get dressed and get to work, or he would be written up for impeding a peace officer's count. Plaintiff went to retrieve his I.D. card and informed Defendant Gibson that he would like to speak to a sergeant. At 4:10 a.m., Defendants Gibson and Roberts escorted Plaintiff to the 1-yard support office, where two other Doe officers were present. A few minutes later, Defendant Jackson, the 1-yard a.m. kitchen officer, arrived. Defendant Jackson was irate, and asked what was Plaintiff's problem. Plaintiff told Defendant Jackson that he did not want the job and to give him the write up. Defendant Jackson then began to use verbally abusive language at Plaintiff, which the Court need not repeat.

Plaintiff was placed into a holding cage for forty-five minutes before he was returned to his building. Plaintiff contends a violation of his First, Eighth, and Fourteenth Amendment rights. Plaintiff requests as relief compensatory and punitive damages.

III. Analysis

A. Linkage Requirement

Plaintiff fails to link Defendants J. Gutierrez, A. Vargas, M. Tuntakit, James D. Hartley, R. Boccella, M. Whiteman, and Does 1 through 10 to any act that indicates a violation of Plaintiff's constitutional rights. To state a claim under ยง 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured ...


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