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Charles A. Rogers v. N. Emerson

May 17, 2013

CHARLES A. ROGERS, PLAINTIFF,
v.
N. EMERSON, 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 DEFENDANTS THIRTY-DAY DEADLINE

Plaintiff Charles A. Roberts ("Plaintiff") is a prisoner proceeding pro se in this civil rights action. Plaintiff originally filed his action in the Kings County Superior Court on September 5, 2012. Defendants paid the filing fee and removed the action to this Court on November 7, 2012. Plaintiff names Correctional Sergeants Goss and M. Jones, and Correctional Officer N. Emerson as Defendants. Plaintiff's complaint is now before the Court for screening.

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.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient 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. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff alleges that on October 24, 2011, Defendant Emerson searched his cell. Plaintiff filed an inmate appeal against Defendant Emerson for property damage and because of the condition in which he left Plaintiff's cell. Defendant Jones interviewed Plaintiff and Defendant Emerson in relation to his inmate appeal. Defendant Emerson denied damaging any of Plaintiff's property.

On December 14, 2011, Defendant Emerson returned to search Plaintiff's cell, stating, "What are the odds I get to come back to this cell." Compl. 3. He asked Plaintiff's cellmate which shelf his things were on, and then went straight to Plaintiff's shelf. Plaintiff immediately approached Defendant Goss, Defendant Emerson's immediate supervisor, and relayed his concerns that Defendant Emerson was retaliating against him for filing the appeal. Defendant Goss stated, "Cool." Compl. 3.

Defendant Emerson came downstairs with all of Plaintiff's compact discs. Plaintiff had the same amount of compact discs during the last cell search in October. Defendant Emerson told Plaintiff to choose twelve discs and decide what he wanted to do with the rest. Plaintiff chose to destroy the remainder of the discs, and he destroyed 98 discs in the presence of Defendant Emerson and others.

Based on these allegations, Plaintiff alleges:

1. Retaliation by Defendant Emerson;

2. "Willful and Wanton Conduct" by ...


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