The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 12)
AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER
On September 28, 2009, Plaintiff Leroy Hawkins, Jr., 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 consented to Magistrate Judge jurisdiction. (ECF No. 4.) On March 23, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 12); Fed. R. Civ. P. 15(a). Plaintiff's First Amended Complaint is now before the Court for screening.
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 FIRST AMENDED COMPLAINT
Plaintiff identifies John Doe, Director of Corrections, California Department of Corrections and Rehabilitation (CDCR) and Kathleen Allison, Warden, California Substance Abuse Treatment Facility and State Prison (CSATF) as defendants in this action. Each Defendant is being sued in his or her official capacity. (Compl. at 3.) Plaintiff alleges the following: Plaintiff is mentally disabled and unable to read or write.*fn1 (Id. at 4.) Plaintiff, with an attorney, appealed the conviction leading to his incarceration. Once he exhausted his direct appeal, he undertook to challenge his conviction via a habeas corpus petition. (Id. at 5.) Plaintiff asked prison staff for assistance with his petition. A prison staffer assigned to the Developmental Disability Program at CSATF informed Plaintiff that the only assistance available was the drafting of a letter advising the court that Plaintiff wished to "'revisit' his case." (Id.) Such a letter was sent. Plaintiff never received a response. Plaintiff unsuccessfully sought further assistance with his habeas petition. (Id. at 6.)
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 States was violated and
(2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda ...