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Larry Francis Durden v. Cdcr

January 17, 2012

LARRY FRANCIS DURDEN,
PLAINTIFF,
v.
CDCR, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

OBJECTIONS DUE WITHIN FIFTEEN DAYS

Screening Order

I. Procedural History

On June 6, 2011, Plaintiff Larry Francis Durden, a state prisoner proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, naming defendants from California Correctional Institution in Tehachapi, California ("CCI").*fn1 See Pl. Compl. Doc. 1. On July 1, 2011, Plaintiff filed an "Affidavit / Second Extension to First Complaint." Doc. 8. On July 5, 2011, Plaintiff filed a document entitled "Plaintiff States a Claim." Doc. 10.*fn2 On November 18, 2011 and November 23, 2011, Plaintiff filed documents entitled "Affidavits." Docs. 32, 34, & 36. Although these various filings violated Local Rule 220, the undersigned considered Plaintiff's supplemental pleadings in the first screening, in the interest of judicial economy. On December 8, 2011, the Court issued a screening order, dismissing Plaintiff's case, with leave to file an amended complaint. Doc. 39. On December 19, 2011, Plaintiff filed his second amended complaint. Doc. 40.*fn3

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 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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

III. Plaintiff's Second Amended Complaint

A. Allegations of Impeding U.S. Mail

In Plaintiff's second amended complaint, he states that the United States Postal Service stopped his mail for being a sex offender. Pl. Compl. at 2, Doc. 40. Plaintiff states that in March and April 2011, Defendant Staton was the last human being who had his trust fund statement and it never made it to the trust fund office. Id. at 4. Plaintiff further alleges that all Defendants stopped his trust fund statement from arriving at the trust fund office. Id. at 5.

Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, the right is not absolute and may be infringed upon by prison officials under certain circumstances. Witherow, 52 F.3d at 265 ; Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (incoming mail). Plaintiff has not alleged any facts supporting a claim that the Defendants named in this action violated his rights under the First Amendment by impermissibly interfering with his incoming or outgoing mail. Plaintiff simply alleges that Defendant Staton was the last human being who had his trust fund statement. Accordingly, the undersigned recommends that Plaintiff fails to state a cognizable claim for relief under § 1983 based upon interference with his First Amendment right to send and receive mail.

B. Allegations of Denial of Access to Courts

Plaintiff alleges that since Defendants prevented his trust fund statement from arriving at the trust fund office, he was unsuccessful in his court case, Durden v. Albertazzi, 2:11-cv-00215-EFB (E.D. Cal.).*fn4 Pl. Compl. at 1, 4-5, Doc. 40. Plaintiff also alleges he can only go to the law library ...


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