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 DAYS
Plaintiff Oscar Mendez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed November 21, 2011 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) 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).
III. SUMMARY OF COMPLAINT
Plaintiff claims Defendants have violated his right to religious free exercise and non-discrimination based upon the following:
Plaintiff is a Native American "Yaqui" Indian whose religious practice involves aspects of both Native American and Christian religions. (Compl. at 3.) Defendant Trevino, the Spiritual Advisor at the California Correctional Institution-Corcoran ("CCI"), denied him access to Native American services because (1) he can not attend both Native American services and Christian services, and (2) there were hearsay allegations he was using drugs and selling Indian beadwork. (Id. at 3, 5-7.) Defendants Zanchi and Stainer improperly denied his related prison appeal. (Id. at 3.)
He names as Defendants (1) Pete Trevino, CCI Native American Spiritual Advisor, (2) D. Zanchi, CCI Associate Warden, (3) Stainer, CCI Warden. (Id. at 2-3.)
He seeks injunctive relief allowing freedom of worship, monetary compensation, and appointment of counsel should the Court require oral argument. (Id. at 3, 8.)
A. Pleading Requirements Generally
To state a claim under § 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, 556 U.S. 662, 678 (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 the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 667-68.
Plaintiff alleges Defendants have prevented him from exercising his Yaqui Indian religion, and discriminated against him based upon his status ...