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Tyrone Wallace, Cdcr # E-66269 v. P.Cowan; B. Morris; P.A. Cortez

December 6, 2011

TYRONE WALLACE, CDCR # E-66269
PLAINTIFF,
v.
P.COWAN; B. MORRIS; P.A. CORTEZ; G. PEDERSON; J. VALASKANT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT FOR PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) FAILING TO STATE A CLAIM

I. PROCEDURAL HISTORY

Plaintiff, a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on May 2, 2011, along with a Motion to Proceed In Forma Pauperis (IFP) and a Motion for Appointment of Counsel. On May 10, 2011, the Court granted Plaintiff's Motion to Proceed IFP, but denied his Motion for Appointment of Counsel and dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See May 10, 2011 Order [ECF No. 4] at 6. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. On August 22, 2011, Plaintiff filed his First Amended Complaint ("FAC").

Once again, the Court found that Plaintiff had failed to state a claim upon which relief could be granted and dismissed his First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) & § 1915A(b). See October 25, 2011 Order at 5. Plaintiff was granted leave to file a Second Amended Complaint. Plaintiff was also cautioned that any claims not re-alleged or Defendants not re-named would deemed waived. Id. at 5 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). On November 7, 2011, Plaintiff filed his Second Amended Complaint ("SAC"). In his Second Amended Complaint, Plaintiff no longer names as Defendants Cowan, Morris or Valaskant. Thus, these Defendants are dismissed from this action. King, 814 F.2d at 567.

II.

SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As the Court stated in its previous Orders, the Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

A. 42 U.S.C. § 1983 Liability

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983.

B. Retaliation

Plaintiff's allegations are difficult to dechipher and disjointed. It appears that Plaintiff is alleging that Defendant Cortez wrote a false disciplinary report against Plaintiff because of statements made by Plaintiff during his classification hearing. (See SAC at 3.)

In order to prevail on a claim of retaliation, Plaintiff must ultimately be able to prove the following five factors: "(1) [a]n assertion that a state actor took some adverse action against [Plaintiff]; (2) because of (3) [Plaintiff's] protected conduct, and that such action (4) chilled [Plaintiff's] exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." See Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam)).

As was the case with Plaintiff's First Amended Complaint, he sets forth conclusory statements with insufficient specific factual allegations. See Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). Moreover, as stated in the Court's previous Order, there is no allegation that the actions taken by Defendants did not "reasonably advance a legitimate correctional goal." Rhodes, 408 F.3d at 567-69. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 ...


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