The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AND THAT THIS DISMISSAL COUNT AS A STRIKE UNDER 28 U.S.C. § 1915(g) (Doc. 25.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
David Hamilton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on August 5, 2011. (Doc. 1.) On January 13, 2012, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 14.) On April 26, 2012, Plaintiff filed the First Amended Complaint, which 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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Mule Creek State Prison (MCSP) in Ione, California. The events at issue in the First Amended Complaint occurred at North Kern State Prison (NKSP) in Delano, California, and Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated at those facilities. Plaintiff names as defendants the NKSP Warden (Doe defendant), NKSP Education Department Principal (Doe defendant), NKSP Law Librarian Assistant Tech (Doe defendant), CSP Warden R. Lopez, CSP Education Department Principal Mosier, CSP Education Department Principal VanKlevin, CSP Senior Librarian R. Rosenthal, CSP Law Librarian Assistant Tech V. Neri, and Does 1-100. Plaintiff's factual allegations follow.
From September 20, 2010 to February 28, 2011, Plaintiff was held in Orientation at NKSP. According to administrative policy, Plaintiff only expected to be there fourteen days. However, despite his complaints, he was held for five months and eight days.
From September 20, 2010 to November 2010, Plaintiff was allowed access to the law library only once, causing delay in researching and filing his habeas corpus petition in pro se. Plaintiff gave notice of the urgency through request forms and 602 grievances.
On October 27, 2010, Plaintiff received notice to file with the Board of Control without delay, and on November 2, 2010, he received a second notice. Plaintiff was allowed into the law library November 4, 2010 but was unable to obtain the necessary documents required by the State Supreme Court. The law library was inadequate, and inmate staff assistants were untrained.
On January 27, 2011, the Board of Control warned Plaintiff that if he wished to file a court action, he must petition the appropriate court for an order within six months. This issue concerned $200.00 Plaintiff had been granted in a CDC 602 appeal. Plaintiff wrote to Kern County Superior Court requesting forms , and was informed ...