United States District Court, E.D. California
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF
No. 9) DISMISSAL COUNTS AS STRIKE PURSUANT TO 28 USC § 1915(g) CLERK TO
TERMINATE ALL PENDING MOTIONS AND CLOSE CASE
MICHAEL J. SENG, Magistrate Judge.
Plaintiff proceeds pro se and in forma pauperis in this civil rights action filed on June 6, 2014 pursuant to 42 U.S.C. § 1983. The Complaint and First Amended Complaint were dismissed for failure to state a claim. Plaintiff was allowed leave to amend his equal protection claim.
The Second Amended Complaint is before the Court for screening.
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. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff claims Defendants denied him verified documentation of an in-cell assault. This denial prevented him from being reclassified for single cell housing.
He names as Defendants (1) J. Acebedo, Kern Valley State Prison ("KVSP") Correctional Counselor, (2) M. Seaman, KVSP Correctional Counselor, (3) John Doe, KVSP Correctional Counselor, (4) R. Pimentel, California Department of Corrections and Rehabilitation ("CDCR") Appeal Examiner.
Specifically, Plaintiff alleges that:
He was assaulted in his cell at KVSP by a previous cellmate. He asked Defendant Doe, apparently by CDCR Form 22, to produce a non-confidential verified report of his in-cell assault. He claims he needed the verified report to support his request to the classification committee for single cell housing. Defendant Doe did not respond. The classification ...