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Hon C. Lau v. K. Harrington

July 31, 2012

HON C. LAU,
PLAINTIFF,
v.
K. HARRINGTON, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

On September 28, 2010, Plaintiff Hon C. Lau, 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. 5.) Plaintiff's 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).

Before screening, the Court notes that Plaintiff has twice filed an interlocutory appeal. On June 20, 2012, Plaintiff filed the first notice of appeal. (ECF No. 17.) The Ninth Circuit Court of Appeal ruled that the it had no jurisdiction over Plaintiff's interlocutory appeal. (ECF No. 20.) On July 16, 2012, Plaintiff filed a second notice of appeal substantively identical to the first and likewise without a discernable basis. (ECF No. 23.) The second appeal is pending with the appellate court.

Despite the purported appeal, the Court retains jurisdiction. This circuit has long "recognized an exception to the general rule that a valid notice of appeal divests the district court of jurisdiction over all but tangential matters," when the appeal is patently frivolous. Marks v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996) (citing Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992) ("frivolous or forfeited appeal does not automatically divest the district court of jurisdiction"). Plaintiff's second appeal, as noted, is wholly without merit, there having been at the time of its filing no ruling from which to appeal.

III. SUMMARY OF COMPLAINT

The Complaint names the following individuals as Defendants: (1) K. Harrington, Warden; (2) R & R Department Staff; (3) C. Chen, M.D.; (4) Mail Room Staff; (5) Trust Office Staff; (6) Cramer, CCI; (7) Seller, C.O.; and (8) an unspecified number of John Does.*fn1

Plaintiff alleges the following:

Defendants Harrington, Cramer, Seller, and other officers put Plaintiff on twenty-four hour lock down in an isolation cell from August 17, 2010, through September 15, 2010. The cell had a broken light and a "funny squeak noise came from inside . . . ." (Compl. at 4.) Plaintiff went without a shower from September 2, 2010, until September 9, 2010, in spite of a medical chrono requiring Plaintiff to receive daily showers. (Id.)

Mail room and trust office staffs prevented Plaintiff from sending and receiving personal and legal mail until September 15, 2010. Plaintiff was also deprived of indigent stamps and envelopes. Defendant Seller refused to send Plaintiff's legal mail because the mail was dirty and packaged in handmade envelopes. (Id.)

Plaintiff's "prison score" dropped enough to qualify Plaintiff for a level III facility. However, the Defendants refused Plaintiff's request to be transferred to a corresponding facility. (Id.)

On August 30, 2010, Plaintiff picked up his personal property from the R & R Department. Plaintiff's television was not working and the Department refused to reimburse Plaintiff. (Id.)

On August 25, 2010, Defendant Chen refused to reissue a previous medical chrono that authorized Plaintiff's daily showers and possession of a medical mattress, knee brace, orthopedic shoes, and prescription glasses. These items may be confiscated if Plaintiff's chrono is not reauthorized. (Id.)

Plaintiff asserts that "the following civil rights have been violated: right to medical care, access to courts, due process, free speech, freedom of religion, freedom of association, freedom from cruel and unusual punishment, etc. . . . plus racial discrimination." (Id. at 5.)

IV. ANALYSIS

A. Section 1983

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 Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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.'" Id. Facial plausibility demands more than ...


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