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Michael Gonzales v. J. Leal

February 27, 2012

MICHAEL GONZALES,
PLAINTIFF,
v.
J. LEAL, ET. AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM (ECF No. 19) OBJECTIONS DUE WITHIN FOURTEEN DAYS

Plaintiff Michael Gonzales ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action in Kings County Superior Court on August 17, 2010. (Notice of Removal Ex. A at 1, ECF No. 2.) Defendants were served on or about October 18, 2010. (Notice of Removal at 2.) Defendants filed a Notice of Removal on November 17, 2010. (Id.) Plaintiff filed a Motion to Remand on December 6, 2010. (Mot., ECF No. 7.) Plaintiff also filed a set of Objections to Defendants' Notice of Removal soon thereafter. (Objections, ECF No. 8.) The Court denied Plaintiff's Motion to Remand. (ECF Nos. 9 & 12.)

The Court screened Plaintiff's original Complaint, and dismissed it for failure to state a claim. (ECF No. 10.) Plaintiff filed a First Amended Complaint on September 22, 2011 (Compl., ECF No. 17.), and then a Second Amended Complaint on January 9, 2012. (Second Am. Compl., ECF No. 19.) Plaintiff's Second Amended Complaint is now before the Court for screening.

I. 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. PLAINTIFF'S CLAIMS

Plaintiff is currently incarcerated at Corcoran State Prison and brings this action for violation of his First Amendment right to petition the courts and his Fourteenth Amendment right to due process. Plaintiff names the following individuals as Defendants: J. Leal, G. Hernandez, J. Garcia, and R. Cortez.

Plaintiff alleges as follows:

Plaintiff's incoming and outgoing mail has been interfered with by Defendants. His self-created artwork, poetry, books, and greeting cards, which he sells through the postal service, have been confiscated by Defendants. On March 20, 2010, Defendant Cortez refused to deliver Plaintiff's excessive force claim against Defendant Cortez. (Second Am. Compl. at 1.) Defendant Cortez destroyed Plaintiff's claim and destroyed his mail. On June 28, 2010, Defendant Garcia destroyed letters Plaintiff had written to his daughter and drawings Plaintiff meant to send to his family. (Second Am. Compl. at 1-2.) On June 30, 2010, Defendant Hernandez stole and destroyed Plaintiff's institutional mail, which included a letter to Plaintiff's daughter and a letter to the prison law office in San Quentin. (Id. at 3.) On June 23, June 24, June 25, July 4, July 7, and July 10, 2010, Defendant Cortez stole and destroyed Plaintiff's mail, including letters to his daughter, to the prison law office, and other institutional mail. (Id.) On May 20, 2010, Defendant Hernandez stole and destroyed three novels Plaintiff had written when Plaintiff tried to send them to his daughter. (Id.) On May 25, 2010, Defendant Hernandez stole Plaintiff's mail, which included ten drawings and copies of his novels. (Id.) Defendant Hernandez destroyed Plaintiff's novels and gave the drawings to the inmates in the next door cell. (Id.) On July 9, 2010, Defendant Cortez returned Plaintiff's mail, which Plaintiff had intended to send, without any reason. (Id.) On July 17, 2010, Defendant Cortez "strip celled" Plaintiff and took his mailings, including drawings and letters to his daughter. (Id.) Defendant Cortez destroyed the mailings. (Id.) These acts were all done in retaliation for Plaintiff's efforts to exercise his civil rights, and have occurred from 2006 to the present day. (Id.)

Plaintiff has not requested any form of relief in his Second Amended Complaint. Plaintiff includes citations to several cases to provide legal authority for his claims. Plaintiff also refers to Gonzales v. Price, 07-cv-1391, another case he filed in this Court with similar claims. Findings and a recommendation that that case be dismissed because barred by the doctrine of res judicata are pending.

III. ANALYSIS

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).

To state a claim under § 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. ...


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