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Edward B. Spencer v. G.R. Hudson

January 31, 2013

EDWARD B. SPENCER,
PLAINTIFF,
v.
G.R. HUDSON, ET AL.
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON COGNIZABLE FIRST AMENDMENT CLAIM AGAINST DEFENDANT HUDSON AND THAT OTHER CLAIMS AND DEFENDANT BE DISMISSED FOR FAILURE TO STATE A CLAIM (ECF No. 10) FOURTEEN-DAY OBJECTION DEADLINE

Plaintiff Edward B. Spencer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. No other parties have appeared in the action.

Plaintiff initiated this action with an unsigned complaint filed August 20, 2012. (ECF No. 1.) The Court ordered Plaintiff to file a signed pleading. (ECF No. 5.) Plaintiff did so (ECF No. 6), but that signed Complaint was dismissed, with leave to amend, for failure to state a claim (ECF No. 13). Plaintiff has since filed a First Amended Complaint which is now before the Court for screening. (Am. Compl., ECF No. 14.)

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, 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.'" Iqbal, 556 U.S. at 678 (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. Iqbal, 556 U.S. at 678.

II. SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff is currently housed at California Substance Abuse Treatment Facility ("CSATF") where the events at issue occurred. Plaintiff alleges a First Amendment retaliation claim against the following individuals: 1) G. R. Hudson, correctional captain at CSATF and 2) D. Ibarra, correctional lieutenant at CSATF.

Plaintiff's allegations are as follows:

Plaintiff was a member of the Inmate Advisory Council ("IAC") at CSATF. (Am. Compl. at 6.) Plaintiff was removed from the IAC on May 12, 2011 ostensibly for a Rules Violation Report and after filing numerous inmate appeals. (Id. at 7.) Plaintiff never received a Rules Violation Report. (Id.)

On June 28, 2011, Defendant Hudson issued a memorandum stating that any IAC members who filed CDCR 602s would be removed from the council. (Am. Compl. at 8.) Plaintiff was supposedly removed from the IAC because of an "Administrative Order," but Plaintiff was never provided with a copy of the order. (Id. at 8.) On June 16, 2011, Defendant Hudson told Plaintiff he did not want inmates who filed appeals on the IAC. (Id.) Plaintiff believes he was removed by Defendant Hudson because Plaintiff filed a 602. (Id.) Defendant Ibarra is also liable because on June 28, 2011, he told Plaintiff he was not wanted on the IAC and his 602 would be denied. (Id.)

Plaintiff asks for declaratory relief, monetary damages, and punitive damages. (Am. Compl. at 10.)

III. ANALYSIS

A. 42 U.S.C. ยง 1983 ...


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