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James Ruhallah Harrison v. D. Tarnoff

April 20, 2013

JAMES RUHALLAH HARRISON, PLAINTIFF,
v.
D. TARNOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND CERTAIN DEFENDANTS THIRTY-DAY DEADLINE

Plaintiff James Ruhalla Harrison, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on August 17, 2011.*fn1 He names Kern Valley State Prison ("KVSP") Counselor Cox and Appeals Coordinators D. Tarnoff, A. Lane, J. Acebedo and S. Tallerico as Defendants.

A. LEGAL STANDARD

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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; 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. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

According to the Complaint, on June 1, 2010, Defendant Cox told Plaintiff that if he wanted to request a religious name change, he had to submit a letter to him. On June 3, 2010, Plaintiff asked Officer Dhot to tell Defendant Cox that he was done with his letter. Sometime later, Dhot told Plaintiff that Cox would not accept his letter. Plaintiff states that he was not surprised by this because Defendant Cox's attitude "changed" when Plaintiff told him that he wanted to change to a Muslim name.

On June 3, 2010, Plaintiff submitted a 602 relating to Defendant Cox's refusal to take his letter. The appeal was rejected on June 16, 2010, because Plaintiff was not authorized to bypass any level. Plaintiff resubmitted the appeal on June 18, 2010, and pursuant to the instructions, he gave it to a Correctional Officer to give to Defendant Cox. Plaintiff did not get a response from Defendant Cox.

On July 12, 2010, Plaintiff filed another complaint against Defendant Cox, using his first complaint as proof. On July 26, 2010, Defendant Tarnoff unjustly rejected the appeal because Plaintiff had not attempted to resolve the issue at the informal level.

On August 3, 2010, Plaintiff filed a 602 against Defendants Cox and Tarnoff and indicated that he never received a response to his first 602. On October 14, 2010, Defendant Tarnoff rejected the appeal because Plaintiff failed to attach the letter requesting his name change.

Plaintiff then sent his complaint to the Inmate Appeals Branch, where it was rejected because Plaintiff had not filed it first at the institutional level.

Plaintiff submitted his appeal again, but it was rejected by Defendant Lane on December 24, 2010, because too much time had lapsed. Plaintiff resubmitted his complaint, but it was rejected on January 11, 2011, by Defendant Acebedo.

On February 2, 2011, Plaintiff resubmitted his 602 and added Defendants Lane and Acebedo. The complaint was rejected by Defendant Tallerico on March 29, 2011, because ...


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