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Buck Boswell v. Cognizable Claim Perez

September 26, 2011

BUCK BOSWELL,
PLAINTIFF,
v.
COGNIZABLE CLAIM PEREZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A SCREENING ORDER (ECF No. 9)

I. PROCEDURAL HISTORY

On May 12, 2009, Plaintiff Buck Boswell, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

The original complaint was screened and dismissed, with leave to amend, on March 11, 2010. (ECF No. 8.) Plaintiff's First Amended Complaint, filed March 25, 2010, is now before the Court for screening. (ECF No. 9.)

II. SCREENING REQUIREMENT

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, malicious," or 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).

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).

III. SUMMARY OF COMPLAINT

The First Amended Complaint alleges Correctional Officer Perez deprived Plaintiff of his property in violation of his Due Process rights.*fn1

Plaintiff alleges the following:

On February 27, 2009 Plaintiff was presented with a property inventory slip in anticipation of his move to administrative segregation. Plaintiff noticed the property inventory slip was incorrect and informed the officer. Plaintiff refused to sign the slip and asked that the mistake be corrected. (Compl. at 3.) The error was not fixed and Plaintiff was moved without his belongings. (Id. at 3, 4.) Plaintiff repeatedly submitted appeals to retrieve his property and has thus far been unsuccessful. (Id. at 4.)

IV. ANALYSIS

To state a claim under Section 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United ...


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