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Horace Bell v. T. Kurz

December 9, 2011

HORACE BELL,
PLAINTIFF,
v.
T. KURZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND (Doc. 22.) THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT

I. RELEVANT PROCEDURAL HISTORY

Horace Bell ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation, proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 30, 2009 at the Kern County Superior Court. (Doc. 1, Exh. B.) On February 19, 2010, this case was removed to federal court under 28 U.S.C. § 1441(b) by defendant Kurz. (Doc. 1.) The Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 and entered an order on November 12, 2010, dismissing the Complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure, with leave to amend. (Doc. 9.) On November 29, 2010, Plaintiff filed the First Amended Complaint. (Doc. 10.) The Court screened the First Amended Complaint and entered an order on April 29, 2011, dismissing the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 20.) On May 11, 2011, Plaintiff filed the Second Amended Complaint ("2ACP"), which is now before the Court for screening. (Doc. 22.)

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 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 is required to 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, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 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. While factual allegations are accepted as true, legal conclusions are not. Id.

III. SUMMARY OF SECOND AMENDED COMPLAINT

Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility ("SATF") in Corcoran, California. The events at issue occurred at Kern Valley State Prison ("KVSP") in Delano, California, while Plaintiff was incarcerated there. Plaintiff names as defendants Correctional Officer ("C/O") T. Kurz, C/O C. Brubaker, C/O D. Kiser, C/O B. Eaton, C/O J. Trimble, Lieutenant C. Waddle, Sergeant V. Sica, C/O A. Agu, Sergeant R. Barrett, and C/O

A. Romero.

Plaintiff alleges as follows in the Second Amended Complaint. From January 2009 through October 2010, defendant T. Kurz refused to respond to Plaintiff's Form 602 prison grievances, stuffing them in the desk drawers or throwing them away. Defendant Kurz had defendants Brubaker, Kiser, Waddle, and Sica move Plaintiff to another yard to circumvent the 602 appeal process. Defendants Eaton, Trimble, and Agu participated in the retaliation. Defendant Eaton made all other 602 appeals disappear. Defendant Trimble practiced racism and White Supremacy. Defendant Agu participated in Plaintiff's move, along with defendant Barrett, who would not correct the retaliation when in a position to do so. Defendant Brubaker stated, "T. Kurz A. Romero said you don't get along with second watch either, you move!" 2ACP, Doc. 22 at 4 ¶IV.

Plaintiff requests monetary damages, injunctive relief, and attorney's fees.

IV. PLAINTIFF'S CLAIMS

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 Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law ...


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