BRADY K. ARMSTRONG, Plaintiff,
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)
AMENDED PLEADING DUE IN THIRTY (30) DAYS
MICHAEL J. SENG, Magistrate Judge.
Plaintiff Brady K. Armstrong is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
Before the Court for screening is Plaintiff's complaint. For the reasons set forth below, the Court finds the complaint fails to state a cognizable claim and ORDERS it DISMISSED with leave to amend.
I. 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).
II. PLEADING STANDARD
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).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty. , 811 F.2d 1243, 1245 (9th Cir. 1987).
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 , 556 U.S. 662, 678 (2009), citing Bell Atlantic 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 . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 667-68.
III. PLAINTIFF'S ALLEGATIONS
Plaintiff complains that in 2007, while incarcerated at Kern Valley State Prison ("KVSP"), he was subjected to abusive language, threat of violence, excessive force, and a false rules violation report in retaliation for his engaging in protected activity. Such actions violated his rights under the First, Eighth and Fourteenth Amendment to the U.S. Constitution as well as state prison regulations.
The sole named Defendant is KVSP correctional officer Hicks.
More specifically, Plaintiff alleges that:
In March 2007, Plaintiff was assigned to work in the KVSP dining hall/kitchen. Hicks refused to call Plaintiff to work. On April 29, 2007, Plaintiff filed a Form 602 grievance against Hicks.
On June 8, 2007, Hicks retaliated, labeling Plaintiff a snitch and telling other inmates they could do whatever they wanted to him. Plaintiff dismissed the April 29th grievance out of fear for his safety.
On June 9, 2007, Plaintiff filed a 602 against Hicks. Hicks retaliated by using abusive language prohibited under Title 15; grabbing Plaintiff's wheelchair handle and violently shaking Plaintiff causing him severe pain; and by filing a false rules violation report (Form 115) which resulted in Plaintiff being placed in administrative segregation. The rules violation report was dismissed on August 25, 2007.
On September 24, 2007, Plaintiff filed a 602 against Hick. Prison officials did not respond to the September 24th grievance. Plaintiff seeks (1) monetary ...