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Deshawn Malone v. F. Gonzalez

February 26, 2013

DESHAWN MALONE,
PLAINTIFF,
v.
F. GONZALEZ, 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. 13) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS / SCREENING ORDER

I. PROCEDURAL HISTORY

On September 15, 2011, Plaintiff Deshawn Malone, 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. 4.)

On August 2, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 12.) Plaintiff's First Amended Complaint (ECF No. 13) 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 Thomas Heaslip, Law Library Supervisor, California Correctional Institution (CCI), as the sole Defendant.

Plaintiff alleges the following:

In 2010 Plaintiff was confined at CCI and had access only to the Security Housing Unit's law library. The library provided inmates with a list of available legal forms that could be delivered directly to an inmate in his cell. The available forms were vaguely identified and did not distinguish between state and federal court. Plaintiff sought "to initiate a state tort law suit" and therefore requested the "summons" form. The library sent Plaintiff a document for federal court. (Compl. at 5.) Plaintiff requested a state court civil summons and again received forms for federal court.

Plaintiff tried to file his claim in state court on December 22, 2010 by copying the format of the federal forms and annotating the documents to convey his intention to file a state law claim. The Clerk for Kern County Superior Court returned Plaintiff's documents as deficient, identified the correct documents, and notified Plaintiff that CCI officials were legally obligated to provide the correct documents necessary to institute his claim. (Id. at 6.)

On March 1, 2011, Plaintiff forwarded the Clerk's response to the law library. The next day Plaintiff visited the library and asked about the requested forms. Librarian Karlow told Plaintiff that Supervisor Heaslip was responsible for providing the requested documents. Plaintiff submitted a written request to Heaslip on March 13, 2011 and received no response. (Id.) The following week Plaintiff filed an ...


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