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Larry B. Moore v. Edmund Brown

April 19, 2012

LARRY B. MOORE,
PLAINTIFF,
v.
EDMUND BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Background

Plaintiff Larry B. Moore ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. He filed his complaint on May 10, 2010. Plaintiff filed a First Amended Complaint on April 20, 2011. On August 15, 2011, the Court dismissed the First Amended Complaint with leave to amend. Plaintiff filed his Second Amended Complaint on December 7, 2011.

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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Complaint

Plaintiff is currently incarcerated in Pleasant Valley State Prison ("PVSP") in Coalinga, California, where a portion of the events giving rise to this action occurred. Plaintiff also complains of events occurring at North Kern State Prison in Delano, California. Plaintiff names the following Defendants: (1) California governor Edmund Brown; (2) California state attorney general Kamala Harris; (3) Secretary of CDCR Matthew Cate; (4) George Giurbino, director of CDCR; (5) Jan Stutter, principal librarian of CDCR; (6) superintendent of CDCR education Glenn Brocking; (7) principal at NKSP Ross Zimmerman; (8) librarian assistant at NKSP Dennis Carr; (9) acting warden of PVSP R. H. Trimble; (10) associate warden of PVSP R. Fisher; (11) principal of education at PVSP J. Wynn; (12) academic vice-principal at PVSP E. Lopez; (13) K. Nash, correctional captain at PVSP; (14) PVSP prison law librarian S.C. Solis; (15) PVSP inmate appeals coordinator J. Morgan; (16) PVSP inmate appeals coordinator D. Freeland; (17) PVSP inmate appeals coordinator L. Harton; (18) CDCR appeal examiner R. Briggs; and (19) CDCR chief of inmate appeals D. Foston.

Plaintiff alleges numerous complaints, almost all of which involve denial of access to the courts. He alleges that (1) Defendants denied him use of the prison law library without notice, explanation or alternative means of legal research/assistance during periods when prisoners were faced with court deadlines in criminal and civil actions; (2) Defendants removed law and procedure books from the law library, denied required copies and charged for blank court forms that should have been provided for free; (3) the law libraries are inadequately supplied; and (4) the computers are programmed by a disk that is created and governed by CDCR. He also alleges "deliberate indifference" in not allowing at least one computer to have internet access to keep the computer current and allow access to all court cases. Based on these allegations, Plaintiff contends that Defendants have an unconstitutional practice, policy and custom of discouraging Plaintiff from accessing the courts.

Plaintiff next alleges that Defendants discriminated against him by denying him the accommodation of using the law library typewriter despite being an ADA inmate. He also alleges that Defendants allow a practice, policy and custom of allowing staff to discriminate against him by "profiling" him as a jail house lawyer.

Plaintiff also alleges retaliation. For example, he alleges that Defendants deleted case law in retaliation for Plaintiff's state and federal cases against them. He also alleges that on information and belief, he was put up for transfer in November 2011 in retaliation for a United States Supreme Court ruling related to Defendants.

Based on these allegations, Plaintiff alleges violations of the First, Eighth and Fourteenth Amendments. He also cites Article I, Sections 15 and 17 of the California Constitution, numerous sections of Title 15 of the California Code of Regulations and "California Civil Procedure sections" 815.6 and 2600.

He alleges that he suffered injury and contends that Defendants' acts "are violations to [his] right to timely respond to orders of the courts" and "to present and advance litigation issues before the courts." Plaintiff alleges that these violations began in November 2005 and are ongoing. He requests monetary, declaratory and injunctive relief.

III. Analysis

A. Rule 8

Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, the complaint or amended complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

Plaintiff alleges that the violations began in November 2005 and were ongoing as of the time he filed his complaint. He provides, however, only general allegations without specific factual explanation. As the Supreme Court explained, a pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Iqbal, 127 S.Ct. 1955 (citations omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citations omitted).

Plaintiff's complaint, which complains of events spanning at least five years, provides insufficient factual information to satisfy Rule 8.

B. Linkage

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Simmons v. Navajo County, ...


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