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Gary Dale Barger v. California State Prison

December 18, 2012

GARY DALE BARGER,
PLAINTIFF,
v.
CALIFORNIA STATE PRISON, CORCORAN, 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 DAYS

FIRST SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Gary Dale Barger is a state prisoner proceeding pro se in this civil rights action filed on November 15, 2012 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's Complaint is rambling and difficult to follow. He appears to claim that Defendants, Corcoran State Prison ("CSP") staff against whom he has pending "cv's"*fn1 for alleged federal rights violations, confiscated his property, including legal and national security documents, and attacked him and then falsely accused him in the attack. As a result, he was placed in solitary confinement and improperly classified and programmed for mental health issues and denied treatment and outdoor exercise, violating his federal rights. (Compl. at 3-4, 5-8.) Plaintiff alleges as follows:

A. Cell Search and Property Confiscation

Defendants Correctional Officer Castro and Sergeant Henderson confiscated his property on May 23, 2012. (Id. at 1-3.)

Two unnamed officers searched his cell and confiscated his property on "September 12 or October 12." (Id. at 3.)

Defendants Correctional Officer Magadellan*fn2 and Sergeant Henderson, on "November 7", searched his cell and confiscated his property consisting of "military, legal, confidential documents and two legal law books." (Id.)

B. Excessive Force and Solitary Confinement

Plaintiff confronted Defendants Magadellan and Henderson regarding the foregoing, calling them "Traitors". (Id. at 4.) Defendants Magadellan and Henderson then attacked him, but blamed him in the attack causing Plaintiff to be placed in solitary confinement, and his "very sensitive . . . national security" documents to be confiscated. (Id. at 4.)

C. Mental Health Classification and Treatment

Plaintiff attaches to his Complaint an apparent separate pleading (Id. at 5-9) alleging improper mental health care downgrade to outpatient (Id. at 6) and insufficient mental health treatment. (Id. at 7.)

Defendant Henderson and Chief Psychologist Ferguson*fn3 allowed for outdoor exercise and access to "computer generated material" that was insufficient. (Id. at 7-8.)

Plaintiff names as Defendants (1) CSP, (2) the California Department of Corrections and Rehabilitation ("CDCR"), (3) Correctional Officer Magadellan, (4) Sergeant Henderson, (5) Property Officer Miranda, (6) Correctional Officer Soto, (7) Correctional Officer Castro, and (8) Correctional Officer Bartz. (Id. at 1, 5.)

Plaintiff seeks monetary compensation and return of confiscated property. (Id. at 4.)

IV. ANALYSIS

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. 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, 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 the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.

Every pleading must be signed personally by an unrepresented party. Fed. R. Civ. P. 11(a).

If Plaintiff chooses to amend, any amended pleading should be complete within itself, without reference to or attachment of another pleading. Local Rule 220. Any amended pleading must be signed personally by Plaintiff.

B. Eleventh Amendment Immunity

Plaintiff may not bring suit against the CDCR in federal court because it is a state agency and is entitled to Eleventh Amendment immunity. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Plaintiff may not by this action seek relief against the CDCR by purporting to name CSP.

C. Unnamed Defendants

Plaintiff makes allegations against unnamed officers, but fails to name any Doe Defendants. He also attributes liability to Chief Psychologist Ferguson, who is ...


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