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Harvey v. Flores

United States District Court, Ninth Circuit

July 29, 2013

FREDERICK M. HARVEY, Plaintiff,
v.
A. FLORES, Defendant.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED PLEADING DUE WITHIN THIRTY (30) DAYS

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff Frederick M. Harvey is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on September 14, 2012 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The complaint 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 COMPLAINT

Plaintiff claims that while incarcerated at North Kern State Prison (NKSP), Defendant A. Flores, NKSP Correctional Sergeant, used excessive force against him.

Plaintiff alleges that:

On March 21, 2012 (sic), [1] in front of Building C-1 patio area, while in the prone position, he was struck by Defendant Flores.

The administrative documentation of the incident attached to the complaint suggests the following. Plaintiff and other inmates in Building C-1 became loud and disrespectful. When some of the inmates approached the podium, a corrections officer sounded an alarm. Defendant and other correctional staff responded. Plaintiff was blocking a fire door to Building C-1 and ignored Defendant's order to move away from the door and get down. Defendant struck Plaintiff with his baton. Plaintiff ultimately complied with Defendant's order.

As a result of the incident, Plaintiff was placed in Administrative Segregation. He was charged of conspiracy to commit battery on a peace officer. He was found "not guilty" at serious rules violation proceedings and the charge was dismissed.

Plaintiff seeks monetary ...


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