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Christopher Alfred v. P.L. Vazquez

March 28, 2013

CHRISTOPHER ALFRED,
PLAINTIFF,
v.
P.L. VAZQUEZ, DEFENDANT.



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. 14)

AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

On September 13, 2012, Plaintiff Christopher Alfred, 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 has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

On December 3, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 9.) Plaintiff's First Amended Complaint (ECF No. 14) 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

Plaintiff names P.L. Vazquez as the sole Defendant and alleges the following: On July 2, 2012, North Kern State Prison (NKSP) instituted a lockdown of B Facility, buildings 5 and 6, because of race based violence. Recreation, law library, and religious services were restricted. Plaintiff entered NKSP on July 13, 2012; he was stripped naked and examined in the Receiving and Release Department. (Compl. at 1, 2.) A Sergeant sent Plaintiff into the lockdown facility based on Plaintiff's tattoos, general appearance, and documented allegations of gang affiliation. Plaintiff and five other African American inmates were sent into lockdown. (Id. at 2.) The lockdown, July 13, 2012 through October 23, 2012, affected only African American and Hispanic inmates.

According to a Program Status Report, attached to the amended complaint and dated July 2, 2012, Facility B was on modified program because of a "riot/disturbance". All inmates were affected, but African American and Northern Hispanic inmates received additional restrictions. (Id. at 4.)

IV. ANALYSIS

A. Section 1983

To state a claim under Section 1983, a plaintiff must allege two ...


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