The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 13) CLERK TO CLOSE FILE DISMISSAL IS SUBJECT TO 28 U.S.C. 1915(g)
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 consented to Magistrate Judge jurisdiction. (ECF No. 4.)
Plaintiff initiated this action on July 18, 2011. (ECF No. 1.) No other parties have appeared. The Court screened Plaintiff's original Complaint, and dismissed it with leave to amend for failure to state a claim. (ECF No. 10.) Plaintiff filed an amended complaint on May 23, 2012. (ECF No. 13.) The Court finds that Plaintiff again fails to state a cognizable claim.
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 the following individuals violated his First Amendment rights: 1) James A. Hartley, warden of ASP, 2) D'Artni, Second Watch Correctional Officer at ASP, and 3) P. Martin, Second Watch Correctional Officer at ASP.
The allegations of Plaintiff's Amended Complaint are nearly identical to his original Complaint. He alleges:
On July 12, 2011, Defendant Martin called Plaintiff to the podium and presented him with a CDCR 128-B chrono dated July 11, 2011, regarding a previous conversation Defendant Martin and Plaintiff had had about the opening of Plaintiff's mail. (Am. Compl. at 4.) Defendant D' Artni said "that sounds like a threat to me." (Id. at 5.) Plaintiff interpreted this statement to mean that Defendant D'Artni was threatening him with a false charge for threatening a correctional officer. (Id.) Plaintiff had seen these Defendants assault other inmates, and he became concerned for his safety. (Id.) Plaintiff filed three CDCR 22 informal chronos to inform Defendant Hartely of the incident at the podium. (Id. at 6.) As a result of Plaintiff's fears, Plaintiff did not file any 602 inmate grievances for the opening of his legal mail from this Court. (Am. Compl. at 5.) One of the individuals who opened Plaintiff's mail was a friend of Defendants Martin and D'Artni. (Id.)
Plaintiff seeks compensation for emotional pain and suffering, punitive damages, court costs and legal fees.
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 ...