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Jerry Emanuel Pollard v. S.D. Hass

August 29, 2012

JERRY EMANUEL POLLARD,
PLAINTIFF,
v.
S.D. HASS, ET AL.
DEFENDANTS.



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

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 Jerry Emanuel Pollard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 4.)

Plaintiff initiated this action on June 27, 2011. (Compl., ECF No. 1.) No other parties have appeared in the action. Plaintiff's 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, ___ 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.

II. SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff is currently housed at Salinas Valley State Prison. The events at issue in Plaintiff's Complaint occurred at Kern Valley State Prison ("KVSP"). Plaintiff alleges claims under the First, Fourth, Fifth and Fourteenth Amendments against the following individuals:

1) S. D. Hass, Facility 3rd Watch Lieutenant at KVSP; 2) K. Harrington, Warden at KVSP;

3) R. Grissom, Supervisor Associate Warden at KVSP; 4) L.L. Wood, Captain Supervisor at KVSP; 5) J. Orozco, Facility D 3rd Watch Floor Officer- Correctional Officer at KVSP;

6) E. Oseguera, Facility D 3rd Watch Floater Officer, Correctional Officer at KVSP; 7) J. Garcia, Facility D, 3rd Watch Floater Officer, Correctional Officer at KVSP; 8) M.D. Biter; and 9) S. Henderson.

Plaintiff alleges as follows:

Plaintiff was supposed to file an amended complaint in another action in April 2010. (Compl. at 4.) Even with an extension, Plaintiff was unable to file an amended complaint because his personal property was taken away February 19, 2010 for not consenting to a cell-mate. (Id. at 4, 10.) Plaintiff's legal materials were returned to him on March 18, 2010. (Id. at 5.) Later, Defendant Orozco threatened to take them away again. (Id.)

On March 27, 2010, after Defendant Henderson discovered Plaintiff had refused to agree to a cell-mate, he ordered Plaintiff's property to be taken away from April 27, 2010 to October 27, 2010. (Compl. at 5.) On June 5, 2010, Defendant Hass ordered Defendants Oseguera and Garcia to search Plaintiff's cell. (Id. at 5.) During the search Defendant Hass told Defendant Garcia to remove Plaintiff's legal materials, books, and course-work. (Id. at 5-6.) Defendant Hass came to Plaintiff's cell and told Plaintiff that he had Plaintiff's property and would not return it. (Id. at 6.) Defendant Haas told Plaintiff he could take Plaintiff's property whenever he wanted. (Id.) Plaintiff filed a grievance, but Defendants Henderson and Wood said the decision could not be changed. (Id. at 7.) Plaintiff spoke with Defendants Biter and Grissom but they also refused to return Plaintiff's property. (Id.) Plaintiff filed an appeal, but it was denied. (Id.) Even though Plaintiff's request to file a second amended complaint in his action was granted, he was unable to do so without his legal materials and instead had to proceed on his First Amended Complaint. (Id. at 9.)*fn1 Plaintiff's property was never returned to him. (Id. at 10.)

Plaintiff asks for injunctive relief. (Compl. at 9.) He specifically asks the Court to order Defendants to stop retaliating against him. (Id. at 13.)

III. ANALYSIS

A. 42 U.S.C. § 1983 Analysis

42 U.S.C. § 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). § 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, 109 S. Ct. 1865 (1989).

To state a claim under ยง 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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