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Deshawn Malone v. F. Gonzalez

March 28, 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 PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 19) CLERK SHALL CLOSE THE CASE 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.)

Plaintiff's Complaint (ECF No. 1) and First Amended Complaint (ECF No. 13) were screened and dismissed, with leave to amend, on August 2, 2012 and February 27, 2013, respectively, for failure to state cognizable claims. (ECF Nos. 12, 18.) Plaintiff's Second Amended Complaint (ECF No. 19) 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 SECOND AMENDED COMPLAINT

The Second Amended Complaint names Thomas Heaslip, Law Library Supervisor, and F. Gonzalez, Warden, of California Correctional Institution (CCI), as Defendants.

Plaintiff alleges the following:

In 2010 Plaintiff was confined in the Security Housing Unit (SHU) at CCI and had access to the unit's law library. Plaintiff sought to initiate a civil claim in state court and was told that legal forms could be requested from the SHU law library via CCI's internal mail. Plaintiff had a list of the forms available in the library. (Compl. at 6.) The listing of available forms did not distinguish between state and federal court documents. Plaintiff requested the "summons" form because the state summons form is required upon filing an action in state court. The library sent Plaintiff a civil rights complaint form designed to initiate a section 1983 claim in federal court. Plaintiff specifically requested a state court summons a second time and again received the federal form.

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 initiate a state tort civil law suit." (Id. at 7.) 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 7, 8.)

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. Legal Technical Assistant Karlow checked for the forms and discovered that the library did not have them. Karlow told Plaintiff that he was not responsible for getting the forms and directed Plaintiff to Supervisor Heaslip. (Id. at 8.) Plaintiff submitted a written request to Heaslip on March 13, 2011 and received no response. (Id. at 8, 9.) The following week Plaintiff filed an inmate grievance seeking the necessary forms. Plaintiff has not received the requested documents. (Id. at 9.)

The underlying claim Plaintiff sought to litigate was an unspecified civil tort action in state court based on the use of curse words by two ...


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