The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Tyrone D. Newman ("Plaintiff") is a former state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on July 18, 2011. (ECF No. 1.) No other parties have appeared. Plaintiff's Complaint is now before the Court for screening.
For the reasons stated below, the Court finds that Plaintiff fails to state a cognizable claim. He will be given leave to amend.
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, ____ U.S. ____, ____, 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.
Plaintiff was formerly incarcerated at Avenal State Prison ("ASP"), where all of the events at issue in the Complaint occurred. Plaintiff has since been released. Plaintiff alleges that he was retaliated against, in violation of the First Amendment, for filing or trying to file grievances.
Plaintiff names the following individuals as Defendants: 1) James A. Hartley, warden of ASP, 2) D'Artni, Second Watch Correctional Officer at ASP, 3) P. Martin, Second Watch Correctional Officer at ASP, and 4) Lavorcy, Second Watch Correctional Officer.
Plaintiff seeks compensation for emotional pain and suffering, punitive damages, court costs and legal fees.
His allegations are as follows:
Plaintiff's First Amendment rights were violated on July 12, 2011. (Compl., ECF No. 1 at 4.) Plaintiff claims, in effect, that he was retaliated against for pursuing inmate grievances about prison staff opening his legal mail on June 22, 2011. (Id.) On July 12, 2011, Plaintiff was confronted by Defendant Martin who gave Plaintiff a CDCR 128-B chrono. The chrono was in response to Plaintiff's July 11, 2011 request that Defendant Martin provide appeals forms so Plaintiff could challenge the improper opening of his legal mail on June 22, 2011. (Id. at 4, 22.) After Plaintiff read the chrono, Defendant D'Artni said "that sounds like a threat to me." (Id. at 4.) Plaintiff understood this to mean that he could be given a false charge of threatening a correctional officer as retaliation for his grievances. (Id.) This comment had a chilling effect on Plaintiff because he felt he was being retaliated against. (Compl. at 5.) Defendant Martin then said he was going to write another chrono as a result of Plaintiff threatening him. (Id.)
Plaintiff advised his civil attorney about the incident. (Compl. at 5.) She documented the incident. (Id.) Plaintiff also wrote three chronos to Defendant Hartley to inform him of this incident. (Id.) In his chrono Plaintiff, explained how he had been "chilled" from filing 602s and how Defendants D'Artni and Martin had threatened and intimidated him. (Id.)
Defendant Lavorcy also caused Plaintiff emotional trauma because of her generally mean disposition on ...