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Hon C. Lau v. K. Harrington

November 30, 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 FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 30) 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.)

On August 1, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 25.) Plaintiff's First Amended Complaint (ECF No. 30) 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 FIRST AMENDED COMPLAINT

The First Amended Complaint names the following Kern Valley State Prison (KVSP) officials as Defendants: (1) K. Harrington, Warden; (2) Staff, R&R Department; (3) C. Chen, M.D.; (4) Staff, Mail Room; (5) Staff, Trust Office; (6) Cramer, CCI; (7) Seller, C.O; and (8) an unspecified number of John Doe prison guards.

Plaintiff alleges the following:

On August 25, 2010, Defendant Chen refused to reissue a medical chrono authorizing Plaintiff a daily shower, a medical mattress, knee braces, medical shoes, prescription eye glasses, and medication. (Compl. at 3.)

Plaintiff was confined to an isolated cell twenty-four hours a day for seven days. The cell had a broken light and a "funny squeak noise came from inside . . . ." Plaintiff did not have an opportunity to shower. Defendant "Seller refused [Plaintiff's] request to fix." (Id. at 4.)

The Mail Room Staff and Seller did not pick up Plaintiff's legal and other mail daily. Plaintiff was unable to correspond with family or address a pending legal matter. (Id. at 5 and 7.) The Trust Office Staff refused to issue Plaintiff indigent envelopes. Seller also refused to give Plaintiff "blank trust withdraw forms for mailing purpose." (Id. at 7.) Plaintiff lost all his pending court cases because of the Defendants' conduct. (Id.)

On August 30, 2010, Plaintiff retrieved his personnel property from the R&R Department. His television was not working, and the R&R Staff refused to pay for the damage. (Id. at 6.)

Warden Harrington along with unknown prison guards racially discriminated against Plaintiff; they refused to transfer him to a lower custody level. (Id. at 8.)

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 ...


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